Page 1 of 69 6560 - 50 - P ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52 [EPA-HQ-OAR- 2010 - 0107 ; FRL -xxxx-x]

RIN- 2060 -A

Q08 Action to Ensure Authority to Issue Permits under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY : The EPA is proposing to find that 16 s tates with EPA
approved state implementation plan (SIP) New Source Review Prevention of Signifi cant Deterioration (PSD) programs are substantially inadequate to meet Clean Air Act (CAA) requirements because they do not appear to apply PSD requirements to GHG
- emitting sources. For each of these states, EPA proposes to require the state (through a " S IP Call " ) to revise its SIP as necessary to correct such inadequacies . EPA proposes an expedited schedule for states to submit their corrective SIP revision, in light of the fact that as of January 2, 2011, certain GHG
- emitting sources will become subject to the PSD requirements and will not be able to construct or modify unless they have a PSD permit. As for the rest of the states with approved SIP PSD programs , EPA solicits comment on whetherPage 2 of 69

their PSD programs do or do not apply to GHG - emitting sources . I f, on the basis of information EPA receives, EPA concludes that the SIP for such a state does not apply the PSD program to GHG emitting sources, then EPA will proceed to also issue a finding of substantial inadequacy and a SIP Call for that state . In a companion notice, EPA proposes a federal implementation plan (FIP), which EPA would finalize if a state fails to make the required SIP submission and which would authorize EPA to issue the PSD permits to the GHG sources. DATES: Comments . Comments mus t be received on or before [INSERT DATE 3 0 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] . ADDRESSES: Submit your comments, identified by Docket ID No. EPA- HQ - OAR- 2010
- 0107 by one of the following methods:

 www.regulations.gov : Follow the on line instructions for submitting comments.

 E -mail : a - and- r - docket@epa.gov .
 Fax : ( 202 ) 566
- 9744

 Mail : Attention Docket ID No. EPA
- HQ - OAR- 2010
- 0107 , U.S. Environmental Prote ction Agency, EPA West (Air Docket), 1200 Pennsylvania Avenue, NW, Mail code: 6102T, Washington, DC 20460. Please include a total of 2 copies. In addition, please mail a copy of your comments on thePage 3 of 69

information collection provisions to the Office of Info rmation and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th Street, NW, Washington, DC 20503.

 Hand Delivery : U.S. Environmental Protection Agency, EPA West (Air Docket), 1301 Constitution Avenue, Northwest , Room 3334 , Washington, DC 20004, Attention Docket ID No. EPA- HQ - OAR- 2010
- 0107 . Such deliveries are only accepted during the Docket ' s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions . D irect your comments to Docket ID No. EPA
- HQ - OAR2010
- 0107 . EPA ' s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov , i ncluding any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e -mail. The www.regulations.gov Web Site is an " anonymous access " system, which means EPA will not know your ident ity or contact information unless you provide it in the body of your comment.Page 4 of 69

If you send an e -mail comment directly to EPA without going through www.regulations.gov , your e -mail address will be automatically cap tured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD
- ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, avoid any form of encryption, and be free of any defects or viruses. For additional information about EPA ' s public docket visit the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm . For addition al instructions on submitting comments, go to section I. C of the SUPPLEMENTARY INFORMATION section of this document. Docket . All documents in the docket are listed in the www.regulations.gov index. Although list ed in the index, some information is not publicly available, e.g. , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically inPage 5 of 69

www.regulations.gov or in hard copy at the U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West Building, Room 3334 , 1301 Constitution Ave., NW , Washington, DC. 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 Air Docket is (202) 566
- 1 742. FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton , Air Quality Policy Division, Office of Air Quality Planning and Standards (C504
- 03), Environmental Protection Agency, Research Triangle Park, NC 27711 ; telephone number: (919) 541
- 3450 ; fax number: ( 919) 541
- 5509 ; e -mail address: sutton.lisa@epa.gov . SUPPLEMENTARY INFORMATION: For questions related to a specific state, local, or tribal permitting authority, or to submit information requested in this action, plea s e contact the appropriate EPA r egional 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 021 09
- 3912 , (617) 918
- 1661. Connecticut, Ma ssachusetts, 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 Jers ey, New York, Puerto Rico, and Virgin Islands.Page 6 of 69

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, Vi rginia, and West Virginia.
IV Dick Schutt, Chief, Air Planning Branch, EPA Region 4, Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, GA 30303
- 3104, (404) 562
- 9 033 . 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.
VI Jeff Robinson, Chief, Air Permits Se ction, 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
- 7 876 . 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
- 6 416 . 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) 9 72
- 3974 . Arizona ; California ; Hawaii and the Pacific Islands; Indian Country within Region 9 and Navajo Nation; and Nevada. X Nancy Helm, Manager, Federal and Delegated Air Programs Unit, EPA Region 10, 1200 Sixth Avenue, Suite 900, Se attle, WA 98101, (206) 553
- 6908 . Alaska, Idaho, Oregon, and Washington.Page 7 of 69

I. General Information A. Does this actio n apply to me? Entities potentially affected by this rule include states, local permitting authorities, and tribal authorities. 1 Any SIP approved PSD air permitting regulation that is not structured such that it includes GHGs among pollutants subject to the PSD program will potentially be found to be substantially inadequate to meet CAA requirements, under CAA 110(k)(5) , and the state will potentially be affected by this rule. For example, if a state ' s PSD regulation identifies its regulated NSR pollutant s by specifically listing each individual pollutant and the list omits GHGs , then the regulation is substantially inadequate. Entities potentially affected by this rule also include sources in all industry groups , which have a direct obligation under the CAA to obtain a PSD permit for GHGs for projects that meet the applicability thresholds set forth in the Tailoring Rule . 2 This independent obligation on sources is specific to PSD

1 EPA respects the unique relationship between the U.S. government and tribal authorities and ac knowledges that tribal concerns are not interchangeable with state concerns. However, for convenience, we refer to " states " in this rulemaking to collectively mean states, local permitting authorities, and tribal authorities. 2 Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514. The Tailoring Rule is described in more detail later in this preamble.Page 8 of 69

and derives from CAA 165(a). Any source that is subject to a
s tate PSD air permitting regulation not structured to apply to GHG - emitting sources will potentially rely on this rule to obtain a permit that contains emission limitations that conform to requirements under CAA 165(a) . The majo rity of entities potentially affected by this action are expected to be in the following groups: Industry Group NAICS a 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, 32 551 Nonmetallic mineral product manufacturing 3271, 3272, 3273, 3274, 3279 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, 3369Page 9 of 69

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 Non - residential (c ommercial ) Not available. Codes only exist for private households, construction and leasing/sales industries. a North American Industry Classification System.
B. Where can I get a copy of this document and other related information? In addition to being available in the docket, an electronic copy of this proposal will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this noti ce will be posted on the EPA ' s NSR Web S ite, under Regulations & Standards, at www.epa.gov/nsr . C. What should I consider as I prepare my comments for EPA? 1. Submitting CBI . Do not submit this information to EPA through www.regulations.gov or e -mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one completePage 10 of 69

version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Send or deliver information identified as CBI only to the fo llowing address: Roberto Morales, OAQPS Document Control Officer (C404
- 02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No. EPA- HQ - OAR- 2010
- 0107 . 2. Tips for p reparing your c omments . When submitting comments, remember to:

 Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

 Follow directions
- The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regul ations (CFR) part or section number.

 Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

 Describe any assumptions and provide any technical information and/or data that you used.

 If you estimate poten tial costs or burdens, explain how you arrived at your estimate in sufficient detail to allow forPage 11 of 69

it to be reproduced.

 Provide specific examples to illustrate your concerns, and suggest alternatives.

 Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

 Make sure to submit your comments by the comment period deadline identified. D . How is the preamble organized? The information presented in this preamble is organized as follows: I. Gen eral Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. What should I consider as I prepare my comments for EPA? D. H ow is the preamble organized? II. Overview of Proposed Rule III. Background A. CAA and Regulatory Context B. State PSD SIPs IV. Proposed Action: Finding of Substantial Inadequacy and SIP Call A. Introduction B. State s with SIP PSD Applicability Provisions that Do Not App ear to App ly to GHG - emitting S ources C. States with SIP PSD Applicability Provisions that Do Appear to Apply to GHG - emitting Sources D . Proposed Finding of SIP Substantial Inadequacy and SIP Call; Soli citation of Comment E . Comment Period F . State Actions G . EPA Actions on SIP Submittals; Findings of Failure to Submit and Promulgation of FIPs H . Streamlining the State Process for SIP Development and SubmittalPage 12 of 69

I . Sanctions J . Title V V. Statutory and Exe cutive Order Reviews A. Executive Order 12866

– Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform E. Executive Order 13132

– Federalism F. Executive Order 13175

– Consultation and Coordinati on with Indian Tribal Governments G. Executive Order 13045

– Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211

– Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898

– Federal Actions to Address Environmental Justice in Minority Populations and Low
Income Populations V I . Statutory Authority II. Overview of Proposed Rule In this rulemaking, along with the companion rulemaking described elsewhere in this preamble , EPA is taking another in a series of actions concerning the PSD program for GHG - emitting sources that will begin on January 2, 2011. The s e two rulemaking s take steps to assure that in 16 s tates that do not appear to have authority to issue PSD permits to GHG
- emitting sources at present, either the state or EPA will have the authority to issue PSD permits by January 2, 2011 . Although for most states, either the state or EPA is already aut horized to issue PSD permits for GHG
- emitting sources as of that date, our preliminary information shows that these 16 states have EPAapproved PSD programs that do not appear to include GHG
- emittingPage 13 of 69

sources and therefore do not appear to authorize th e se s tates to issue PSD permits to such sources. In this rulemaking, EPA proposes to find that these 16 states ' SIPs are substantially inadequate to comply with CAA requirements and, accordingly , proposes to issue a SIP C all to require a corrective SIP revisio n that appli es their SIP PSD programs to GHG
- emitting sources. In a companion rulemaking, EPA proposes a FIP that would give EPA authority to apply EPA ' s PSD program to GHG emitting sources in case such a state is unable to submit a corrective SIP revisio n by its deadline. Under the CAA PSD program, 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 165(a), 169(1). The permit must, among other things, impose emission limitations associated with the best available control technology (BACT). CAA 165(a)(4). In recent months, EPA has taken four related act ions that , taken together, trigger PSD applicability for GHG sources on and after January 2, 2011, but limit the scope of PSD . These actions included, as they are commonly called, the " Endangerment Finding " and " Cause or Contribute Finding, " which were is sued inPage 14 of 69

a single final action, 3 the " Johnson Memo Reconsideration, " 4 the

" Light
- Duty Vehicle Rule, " 5 and the " Tailoring Rule. " 6 Taken together, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicl e engines , determined that such regulations, when they take effect on January 2, 2011, will subject GHGs emitted from stationary sources to PSD requirements , and limited the applicability of PSD requirements to GHG sources on a phased
- in basis. We are tak ing this action due to preliminary research indicating that the EPA- approved SIPs for 16 states appear to not apply the PSD program to GHG sources . In many of these states , the SIP applicability provisions apply the PSD program to sources of specifically listed air pollutants and do not include GHGs . I n one state, Connecticut, the SIP explicitly

3 " Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clea n Air Act. " 74 FR 66496 (December 15, 2009). 4 " Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs. " 75 FR 17004 (April 2, 2010). This action finalizes EPA ' s response to a petition for reconsideration of " EPA ' s Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program " (commonly referred to as the " Johnson Memo " ), December 18, 2008. 5 " Light
- Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule . " 75 FR 25324 (May 7, 2010). 6 " Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. " 75 FR 31514 (June 3, 2010).Page 15 of 69

precludes the application of PSD to GHG
- emitting sources . I n other states, the SIP applicability provisions apply the PSD program generally to regulated pollutan ts , and these provisions, by their terms, cover GHGs ; however, the se states have other constitutional, state law, or SIP provisions that may limit their state laws or SIP requirements to applying only when specifically approved by the appropriate state aut hority. As a result, these constitutional or statutory provisions may limit the scope of the state PSD applicability provisions to pollutants identified at a certain point in time as subject to PSD, and thereby preclude the PSD programs from applying to GHG emitting sources because the state has not yet identified GHGs as subject to PSD. As a result, absent further action, GHG sources in those states that will be required to obtain a PSD permit on and after January 2, 2011 will be unable to obtain that pe rmit and therefore unable to proceed with planned construction or modification. I n this rulemaking , we are proposing to find that under CAA 110(k)(5), the SIP for each of the se 16 st ates is substantially inadequate to meet the CAA PSD requirements, and we are proposing a SIP Call to require that each affected state submit
a corrective SIP revision that appl ies the PSD program to GHG
sources. The se states are listed in table I V- 1, " States withPage 16 of 69

SIPs that Do Not Appear to Apply PSD to GHG Sources (Presumptive SIP Call List). " As for the remaining states with EPA
- approved SIP PSD programs, our preliminary research indicates that their SIP PSD applicability provisions apply the PSD programs more broadly

—for example, many apply to sources of " regulated NSR pollut ants "

—and therefore appear to include GHG
- emitting sources. Moreover, we have not to this point received information about other provisions in the state constitutional or other state or SIP law that would have the effect of limiting the applicability of t he PSD provisions to exclude GHG
- emitting sources. Th o se remaining states , which include all the states with EPA
- approved PSD programs not listed in table I V- 1 , are listed in table I V- 2,

" States with SIPs that Appear to Apply PSD to GHG Sources (Presumpti ve Adequacy List). " Even so, we are aware of the possib i lity that some of th o se states may also have other state law provisions that may have the effect of limit ing their PSD SIP requirements to applying only to pollutants specifically approved by the appropriate state authority , which would not include GHGs . In light of this possibility, we are soliciting comment on whether each of th o se remaining states ' SIPs (see table IV- 2) apply PSD to GHG emitting sources. If, for any such state, we receivePage 17 of 69

information that leads us to conclude that its SIP does not apply PSD to GHG - emitting sources, we will take final action to issue a finding of substantial inadequacy and a SIP Call for that state, on the same schedule as that for the 16 states. In a companion action to this rulemaking, we are proposing to promulgate, in any state that is not in a position to make a timely submittal of the corrective SIP revision, a FIP that will assure that sources will be able to obtain the necessary permits, with EPA a s the p ermitting authority for GHG emissions . In view of the need for prompt action to eliminate or significantly limit any time period during which certain GHG sources are precluded from constructing or modifying because no entity has the authority to issue them permits, we intend to finalize this rulemaking action by December 1, 2010, and we propose in this rulemaking to give states a deadline of 12 months from the date we finalize to submit their corrective SIP revision. However, we are also proposing to aut horize states to accept a shorter deadline , as short as three weeks from the date we finalize . If any state is not able to submit a corrective SIP revision by its deadline, then EPA, by virtue of the authority of the FIP provisions under CAA 110(c) , will immediately make a finding that the state has failed to submit the required SIP revision and will immediately promulgate thePage 18 of 69

FIP.Some states may already be in the process of developing the legal authority needed and may be able to submit a SIP revision sooner than December 2010. EPA encourages states to take action as expeditiously as possible and will assist states as much as possible . Therefore, for each state fo r which EPA is proposing a SIP C all, depending on whether the state submits a SIP revisio n before EPA finalizes this action or, if not, depending on which deadline the state receives for the corrective SIP submittal, it is possible that by the time January 2, 2011 , arrives and certain GHG sou rces in the state may be required to obtain PSD permits, a permitting authority will be in place to act on the sources ' permit applications . We ask that, w ithin the comment period for this action , each of the states listed in table I V- 1 confirm to EPA that its SIP do es not apply the PSD program to GHG - emitt ing sources. We
a lso ask that within this comment period, every other state in the nation with an approved SIP (see table I V- 2) review its SIP and inform EPA if its SIP does not apply the PSD program to GHG
emitting sources. Further, we ask that the stat es (see table I V- 1) for which we are propos ing a SIP Call identify the deadline

—between 3 weeks and 12 months from the date of signature of the final SIP Call

—that they would accept forPage 19 of 69

submitting their corrective SIP revision. For example, assuming that, as we anticipat e , this rulemaking is signed in final form by December 1 , 2010 , a state may specify that it would accept a SIP submittal deadline that falls between December 22, 2010, and December 1, 2011, inclusive. III. Background A. CAA and Regulatory Context EPA described the relevant background information in the Tailoring Rule. Knowledge of this background information is presumed and will be only briefly summarized here. 1. SIP PSD Requirements Under the CAA PSD requirements, a new or existing sourc e that emits or has the potential to emit " any air pollutant " in the amounts of either 100 or 250 tons per year (tpy), depending on the source category, cannot construct or modify unless it first obtains a PSD permit that, among other things, imposes emiss ion limitations that qualify as BACT . CAA 165(a)(1), 165(a)(4), 169(1). Long standing EPA regulations have interpreted the term " any air pollutant " narrowly so that only emissions of any " regulated NSR pollutant " trigger PSD. 40 CFR 5 1 .166(j)(1), 52.21(j )(2) . The term " regulated NSR pollutant " is defined to include the following f our classes of air pollutants:Page 20 of 69

(i) any pollutant for which a NAAQS has been promulgated; (ii) any pollutant subject to an NSPS promulgated under CAA 111; (iii) any pollutant subject to a standard promulgated under CAA title VI; and (iv) " any pollutant that otherwise is subject to regulation under the Act " (excluding HAPs listed under CAA 112). 40 CFR 51.166(b)(49), 52.21(b)(50). The CAA contemplates that the PSD program be implemented in the first instance by the states and requires that s tates include PSD requirements in their SIPs . CAA 110(a)(2)(C) requires that

– Each implementation plan * * * shall * * * include a program to provide for * * * regulation of the modificati on and construction of any stationary source within the areas covered by the plan as necessary to assure that national ambient air quality standards are achieved, including a permit program as required in part[] C * * * of this subchapter. CAA 110(a)(2)(J ) requires that

– Each implementation plan * * * shall * * * meet the applicable requirements of * * * part C of this subchapter (relating to significant deterioration of air quality and visibility protection). CAA 161 provides that

– E ach applicable impl ementation plan shall contain emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part [C], to prevent significant deterioration of air quality for such region * * *Page 21 of 69

designated * * * as a ttainment or unclassifiable. These provisions, read in conjunction with the PSD applicability provision

—which, as noted above , applies, by its terms, to " any air pollutant, " and which EPA has , through regulation , interpreted more narrowly as any " NSR regu lated pollutant "

—and read in conjunction with other provisions, such as the BACT provision under CAA 165(a)(4), mandate that SIPs include PSD programs that are applicable to, among other things, any air pollutant that is subject to regulation , including, a s discussed below, GHGs on and after January 2, 2011. 7 A number of states do not have PSD programs approved into their SIPs . I n th o se states, EPA ' s regulations at 40 CFR 52.21 govern, and either EPA or the state as EPA ' s delegat e e acts a s the permitting authority. On the other hand, most s tates have PSD programs that have been approved into their SIPs, and these
s tates implement their PSD programs and act as the permitting authority. These approved SIPs are discussed in more detail below.
7 In the Tailoring Rule, we not ed that commenters argued, with some variations, that the PSD provisions applied only to NAAQS pollutants, and not GHGs, and we responded that the PSD provisions apply to all pollutants subject to regulation, including GHGs. See 75 FR 31560
- 62, " Preventio n of Significant Deterioration and Title V GHG Tailoring Rule: EPA ' s Response to Public Comments , " May 2010, pp.38
- 41. We maintain our position that the PSD provisions apply to all pollutants subject to regulation, and we incorporate by reference our discussion of this issue in the Tailoring Rule.Page 22 of 69

2. Recent EPA Regulatory Action Concerning PSD Requirements for GHG - emitting Sources By notice dated December 15, 2009, pursuant to CAA 202(a), EPA issued , in a single final action, two findings regarding GHGs that are commonly referred to as the " E ndangerment F inding " and the " C ause or C ontribute F inding. " " Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, " 74 FR 66496. In the E ndangerment Fi nding, the Administrator found that six long
- lived and directly emi tted greenhouse gases

—carbon dioxide (CO 2 ), methane (CH 4 ), nitrous oxide (N 2 O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF 6 )

—may
reasonably be anticipated to endanger public health and welfare. In the C ause or C ontribu te F inding, the Administrator " define [d] the air pollutant as the aggregate group of the same six * * * greenhouse gases, " 74 FR 66536, and found that the combined emissions of this air pollutant from new motor vehicles and new motor vehicle engines contri bute to the GHG air pollution that endangers public health and welfare. By notice dated May 7, 2010, EPA published what is commonly referred to as the " Light
- Duty Vehicle Rule " (LDVR), which for the first time established federal controls on GHGs emitted from light
- duty vehicles. " Light
- Duty Vehicle Greenhouse GasPage 23 of 69

Emission Standards and Corporate Average Fuel Economy Standards; Final Rule. " 75 FR 25324. In its applicability provisions, t he LDVR specifies that it " contains standards and other regulation s applicable to the emissions of six greenhouse gases, " including CO 2 , CH 4 , N 2 O, HFCs, PFCs, and SF 6 . 75 FR 25686 ( 40 CFR 86.1818
- 12(a) ) . Shortly before finalizing the LDVR, by notice dated April 2, 2010, EPA published a notice commonly referred to as the Johnson Memo Reconsideration, which interpreted the term

" subject to regulation, " a term that is one of the regulatory triggers for PSD applicability. 8 The Johnson Memo Reconsideration concluded that for GHGs, promulgation of the LDVR would trigger PSD applicability for GHG
- emitting sources on or after January 2, 2011, which according to EPA is the date upon which the LDVR takes effect. By notice dated June 3, 2010, EPA published what is commonly referred to as the " Tailoring Rule , " 9 which limits the
applicability of PSD through a multi
- step phase - in approach to

8 " Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs, " 75 FR 17004 (finalizing EPA ' s response to a petition for reconsideration of " EPA ' s Interpretation of Regu lations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program " (commonly referred to as the " Johnson Memo " ), December 18, 2008). 9 Prevention of Significant Deterioration and Title V Greenhouse Gas Tail oring Rule; Final Rule. 75 FR 31514.Page 24 of 69

only the highest
- emitting GHG
- emitting sources for a specified period of time, and not all GHG
- emitting sources at the 100/250
- tpy statutory thresholds . The Tailoring Rule established the first two steps of the approach, which take effect on January 2, 2011 , and July 1, 2011, respectively. In the Tailoring Rule, EPA codified the Johnson Memo Reconsideration interpretation of the term " subject to regulation " and added a further interpretation of that term designed to expedite the adoption of the phase - in approach for PSD permitting for GHGs by the states into their SIPs. In addition, in the Tailoring Rule, EPA identified the air pollutant that, if emitted or potentially emitted by the source in excess of specified thresholds, would subject the source to PSD requirements, as the aggregate of the six GHGs, again, CO 2 , CH 4 , N 2 O, HFCs, PFCs, and SF 6 . The Tailoring Rule further provided that for purposes of determining whether the GHGs emitted or pot entially emitted exceeded the specified thresholds , the amount of the GHGs must be calculated first on a mass emissions basis and then on a carbon dioxide equivalent (CO 2 e) basis. With respect to the latter , according to the rule, " PSD * * * applicability is based on the quantity that results when the mass emissions of each of these [six] gases is multiplied by the Global Warming Potential (GWP) of that gas, and then summed for all six gases. " 75 FR 31518. InPage 25 of 69

the Tailoring Rule, we asked states to submit to us letters within 60 days of publication describing how they intended to incorporate into their SIPs the limitations on PSD applicability included in the rule ' s phase - in approach. Further information on the Endangerment and Cause or Contribute Findings , the LDRV, the Johnson Memo Reconsideration, and the Tailoring Rule is contained in the Tailoring Rule. 3. SIP Inadequacy and Corrective Action The CAA provides a mechanism for the correction of flawed SIPs, under CAA 110(k)(5), which provides: (5) Cal ls for plan revisions Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to * * * comply with any requirement of this Act, the Administrator shall require the State to revise the plan as nece ssary to correct such inadequacies. The Administrator shall notify the State of the inadequacies and may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions. This provision by i ts terms authorizes the Administrator to

" find[] that [a SIP] * * * is substantially inadequate to * * * comply with any requirement of this Act, " and, based on that finding, to " require the State to revise the [SIP] * * * to correct such inadequacies. " This latter action is commonly referred to as a " SIP Call . " In addition, this provision provides that EPA must notify the state of the substantialPage 26 of 69

inadequac y and authorizes EPA to establish a " reasonable deadline[] (not to exceed 18 months after the date o f such notice) " for the submission of the corrective SIP revision. If the state fails to submit the corrective SIP revision by the deadline, CAA 110(c) authorizes EPA to " find[] that [the] State has failed to make a required submission. " CAA 110(c)(1)(A) . Once EPA makes that finding, CAA 110(c)(1) requires EPA to " promulgate a Federal implementation plan at any time with 2 years after the [finding] * * * unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before [EPA] promulgates such [FIP]. " B. S tate PSD SIPs 1. SIP PSD Applicability Provisions As noted earlier in this preamble , most states have approved PSD SIPs. Most of th ose SIPs identify the pollutants addressed under their PSD program as any " regulated NSR pollut ant . " This definition covers any " pollutant subject to regulation " and therefore , by its terms, in effect is
automatically updating and need s no revision in order to cover pollutants that become subj ect to regulation under the CAA. As a result, these provisions cover GHG emissions when they become subject to regulation under other provisions of the CAA . See 40 CFR 52.21(b)(50).Page 27 of 69

However, EPA has become aware that a minority of approved SIPs fail to include this broad approach to identifying pollutants sub ject to PSD and instead simply list the individual pollutants by name. These SIPs do not identify GHGs as among the pollutants addressed under their PSD program. As a result, the se applicability provisions, by their terms, do not appear to apply the PSD requirements to sources of GHGs when GHGs become

" subject to regulation " under the CAA on January 2, 2011. In addition, the PSD SIP applicability provisions of one state that we are aware of, Connecticut , explicitly excludes CO 2 as an " air pollutant , " so that CO 2 is not subject to PSD requirements. 2. Other Relevant State Law Provisions Some states may have other state law s , including other SIP provisions that bear upon the applicability of their PSD programs to GHG - emitting sources. First, s ome states may have in their SIPs some sort of

" general authority clause " that affirms the state ' s legal authority to issue, and enforce compliance with, permits that are consistent with federal requirements. If one of the states listed in table I V- 1 of this preamb le as having a SIP that does not explicitly apply PSD to GHG emitters nevertheless has such a

" general authority clause, " then the SIP, read as a whole, mayPage 28 of 69

be considered to apply PSD to GHG sources. For an example of the type of " general authority clause " that may have this effect, we refer to correspondence between the California Bay Area Air Quality Management District (BAAQMD) and EPA Region IX that is included in the docket for this rulemaking. In a letter dated October 28, 2009, the BAAQMD proposed t o exercise general authority in order to issue air permits to sources of PM2.5 even though its air permit regulations did not contain specific provisions for PM2.5 emissions. Under the proposed approach, with which EPA concurred, BAAQMD exercised general authority under the administrative requirements within its air permit regulations, which provide that the Air Pollution Control Officer " may impose any permit condition that he deems reasonably necessary to insure compliance with federal or California law or District regulations.... " See Regulation 2
- 1
- 403 included in the docket for this rulemaking. Second, some states may have , in their SIPs, statutes , or constitutions, a provision that precludes " forward adoption, " that is, that prevents the state law from incorporating by reference or otherwise adopting any requirements not specifically adopted by the state legislature or other state authority . In particular , s ome states may include a SIP PSDPage 29 of 69

applicability provision that incorporates by reference (IBR ) our federal PSD rule at 40 CFR 52.21

—including the definition of

" regulated NSR pollutant "

—but that further provides that this IBR is not " rolling " and therefore is limited to only pollutants identified as regulated NSR pollutants as of the date the s tat e adopted the PSD provision. Any of these provisions could limit the SIP PSD applicability rule to only the pollutants that were regulated as of the time the state adopted the PSD applicability rule, which means the SIP PSD program would not cover GHG
emi tting sources until the state took specific action to that effect . IV. Proposed Action: Finding of Substantial Inadequacy and SIP Call A. Introduction Beginning on January 2, 2011, certain stationary sources that construct or undertake modifications wi ll become subject to the CAA requirement to obtain a PSD permit for their GHG emissions. This is because of the following CAA statutory and EPA regulatory requirements: Under CAA 165(a) and 169(1), as interpreted through long standing EPA regulations, PSD applies to sources that emit specified amounts of " regulated NSR pollutants, " which include specified air pollutants as well any other " [ air ] pollutant " that is " subject to regulation. " 40 CFRPage 30 of 69

51.166 (j)( 1 ), (b)( 49 )(iv). By notice dated May 7, 2010, EPA promulgated the Light
- Duty Vehicle Rule (LDVR), which establishes requirements for GHGs . 75 FR 25324. By the terms of the LDVR, these emission limits take effect on January 2, 2011. The LDVR identified the GHGs to which it applies as a single air pollut ant that consists of CO 2 , CH 4 , N 2 O, HFCs, PFCs, and SF 6 . The LDVR followed EPA ' s Endangerment and Cause or Contribute Findings, issued by notice dated December 15, 2009, by which EPA found that GHGs

—defined to include the same six constitutents

—may reason ably be anticipated to endanger public health and welfare. By notice dated April 2, 2010, EPA promulgated the Johnson Memo Reconsideration. 75 FR 17004. In this action, EPA made clear that the regulation of GHGs by the LDVR will trigger the applicabilit y of PSD requirements to GHG emitting stationary sources as of January 2, 2011 , because GHGs will become " subject to regulation " through the LDVR . By notice dated June 3, 2010, EPA promulgated the Tailoring Rule, which narrows PSD applicability to specifi ed GHG - emitting sources on a specified phase
- in schedule and makes clear that GHGs

—defined as the same single pollutant , with six constituent gases , as described in the LDVR

—are the " [air] pollutant " to which PSD requirements apply . 75 FR 31514. As a res ult, beginning on January 2, 2011, under the PSD provisions, the GHG - emittingPage 31 of 69

stationary sources that become subject to PSD

—which are those sources identified in the first step of the Tailoring Rule, followed on July 1, 2011 , by the sources identified in t he second step of the Tailoring Rule

—will not be able to construct or undertake modifications until they receive a PSD permit from the permitting authority. A number of state s do not have an approved PSD SIP; as a result, in these state s 10 the applicable re gulatory authority is EPA ' s regulations, found in 40 CFR 52 .21 , which constitute a FIP . For sources in these state s, either the EPA Regional Office or the state acting as EPA ' s delegatee is the permitting authority. Because EPA ' s regulations apply direct ly, sources in these state s that emit GHGs will become subject to PSD for their GHG emissions, to the extent provided under the Tailoring Rule, on January 2, 2011. These sources will be able, on and after January 2, 2011, to apply for and receive in due c ourse their PSD permits either from EPA directly or from those state
10 In the following listed state or local jurisdictions, as well as in all Indian country, EPA is the PSD permitting authority, implementing the federal PSD regulation at 40 CFR 52.21: American Samoa; Arizona (some ar eas); California (most areas); District of Columbia; Guam; Massachusetts; New Jersey; New York; Northern Mariana Islands; Puerto Rico; Trust Territories; and the Virgin Islands. In a smaller number of areas, listed as follows, the state or local permittin g authority is delegated at least partial authority by EPA to implement the federal PSD regulation: Arizona (some areas); California (some areas); Hawaii; Illinois; Minnesota; Nevada (most areas); Pennsylvania (some areas); and Washington.Page 32 of 69

permitting authorities acting on EPA ' s behalf. All of the other states administer their PSD p rogram through an approved SIP and, as a result, they or their local entities are the PSD permitting authority. This rulemaking concerns whether those approved SIP PSD programs include GHG
emitting sources and , for those that do not, the steps that EPA will take to assure that a PSD permit program that includes GHGs is in place. B . States with SIP PSD Applicability Provisions that Do Not Appear to Apply to GHG - emitting Sources Our research indicates that for 16 of the state s with approved PSD SIPs, the PSD programs of the ir SIPs do not appear to apply to GHG - emitting sources. These states are l isted in table IV- 1, " States with SIPs that Do Not Appear to Apply PSD to GHG Sources (Presumptive SIP Call List). " In a number of these SIPs, the PSD applicability provisions do not mirror EPA ' s regulatory provisions by applying PSD requirements to sourc es of any air pollutant " subject to regulation " ; i nstead, the PSD applicability provisions specifically list the air pollutants to which the PSD program applies and do not include GHGs on that list. As a result, the PSD applicability provisions do not, by their terms, cover GHG
- emitting sources. In addition, Connecticut ' s SIP appears by its terms toPage 33 of 69

preclude the application of PSD to GHG
- emitting sources. Further, some of these states have SIP PSD provisions that by their terms apply PSD to regulated N SR pollutants, or have a substantially similarly phrased requirement, but also have state constitutional or other statutory or SIP provisions that appear to have the effect of limiting PSD applicability to air pollutants identified on a certain date. Ther efore, state law, read as whole, would not appear to apply PSD requirements to GHGs until the appropriate state authority takes action to specifically subject PSD to GHGs, and the state has not yet done
so. We conclude, based on our preliminary research, that the states with SIPs or state law with these provisions do not appear to apply the PSD program to GHG - emitting sources, and we are including them in table IV
- 1. We recognize that stakeholders may have other interpretations of these provisions , and we solicit comments from stakeholders on their interpretations . In addition, some of these SIPs may include what we will refer to as a " general authority provision , " which is a provision for the state to issue PSD permits that comply with EPA requirements , as described earlier in this preamble . If so, it is possible that these provisions could be interpreted to authorize the state in some cases to issue to GHG sources PSDPage 34 of 69

permits that incorporate EPA ' s regulatory requirements, as found in 40 CFR 51.166. As a result, we consider table IV
- 1 to be a presumptive SIP C all list.Page 35 of 69

Table IV- 1. States with SIPs that Do Not Appear to Apply PSD to

GHG Sources (Presumptive SIP Call List) State (or Area) EPA Region Alaska X Arizona: Pinal County IX Arkansas VI Ca lifornia: Sacramento Metropolitan AQMD IX Connecticut I Florida IV Idaho X Louisiana VI Maine I Montana VIII Nevada: Clark County IX New Hampshire I Oklahoma VI Oregon X Texas VI Utah VIIIPage 36 of 69

C. States with SIP PSD Applicability Provisions t hat Do Appear to Apply to GHG - emitting Sources On the other hand, as noted above, for most of the states with approved SIPs, those SIPs generally apply PSD to sources of any " regulated NSR pollutant , " and we have not received information indicating that the state law includes other provisions that may have the effect of precluding PSD from applying to GHG
- emitting sources. As a result, EPA is including a list of states with presumptively adequate SIPs in table I V- 2,

" States with SIPs that Appear to Apply P SD to GHG Sources (Presumptive Adequacy List). "Page 37 of 69

Table IV- 2. States with SIPs that Appear to Apply PSD to GHG

Sources (Presumptive Adequacy List) State (or Area) EPA Region Alabama: Jefferson County; Huntsville; Rest of State IV Arizona: Rest of State (Excludes Pinal County and Indian Country) VIII California: Monterey Bay Unified APCD; North Coast Unified AQMD; Northern Sonoma County APCD IX
Colorado VIII Delaware III Georgia IV Indiana V Iowa VII Kansas VII Kentucky: Jefferson County; Rest of State IV Maryland III Michigan V Mississippi IV Missouri VII Nebraska: Lincoln Lancaster; Omaha; Rest of State VII New Mexico: Albuquerque; Rest of State VI North Carolina: Forsythe County; Mecklenburg; Western NC; Rest of State IV North Dakota V III Ohio V Pennsylvania: All except Allegheny County III Rhode Island I South Carolina IV South Dakota VIII Tennessee: Chattanooga; Nashville; Knoxville; Memphis; Rest of State IV Vermont I Virginia III West Virginia III Wisconsin V Wyoming VIIIPage 38 of 69

We have developed these two lists of states

—one listing states whose PSD program appears to not apply to GHG - emitting sources and one listing states whose program appears to cover such sources

—based on our own preliminary research, consultation with states, and review of the 60
- day letters , described earlier in this preamble , submitted thus far by states in response to the Tailoring Rule. As explained elsewhere in this preamble, we ask that each state with an approved SIP submit information during the comment period for this rulemaking pertinent to whether its SIP

—including the PSD applicability provisions and any other relevant provisions

—covers GHG - emitting sources. D . Proposed Finding of SIP Substantial Inadequacy and SIP Call ; Solicitation of Comment For each of the states listed in table IV
- 1 of this preamble, we propose to issue a finding that the SIP is

" substantially inadequate ... to ... comply with [the PSD] requirement[s] " and to " require the State to revise the plan as necessary to correct such inadequacies , " i.e. , to issue a SIP Call . CAA 110(k)(5). F or each of these states, the SIP appears to not apply the PSD program to GHG - emitting sources. As discussed elsewhere in this preamble , we invite comment on this proposal. For any state liste d in table IV
- 1, i f we doPage 39 of 69

not receive any further information from the state or other commenters, we expect to finalize our proposed finding and SIP C all. Also for any state listed in table IV
- 1, i f we do receive additional information that our interpreta tion of these provisions is incorrect or that the SIP includes a general authority provision so that, read as a whole, the SIP applies the PSD program to GHG sources, we will not finalize our proposed finding and SIP C all . Our basis for the proposed findi ng—and the proposed SIP C all that is based on this finding

—is that CAA 110(k)(5) provides that EPA may make the finding when the SIP is

" substantially inadequate ... to ... comply with any requirement of [the CAA], " and this includes the PSD requirements. As discussed earlier in this preamble , SIPs are required to include PSD programs that apply to sources that emit pollutants subject to regulation; as a result, the SIPs at issue merit a finding of substantial inadequacy because they fail to apply the PSD prog ram to GHG - emitting sources on and after January 2, 2011. For all other states with approved PSD SIPs

—which are the ones listed in table IV
- 2

—we solicit comment on whether the ir SIPs , read as a whole, apply the PSD program to GHG - emitting
sources. If, on the basis of additional information, we conclude that their PSD programs do not apply to GHG
- emittingPage 40 of 69

sources, we will issue a final finding of substantial inadequacy and SIP Call on the same schedule as that for any of the states for which we are issuing a proposed finding and SIP Call . We recognize that PSD requirements will not apply to GHG
emitting sources until January 2, 2011, but that for any state for which we finalize a finding of substantial inadequacy and a SIP Call , our plan is to do so approximately one month in advance of that date. Even so, our timing is justified . SIPs must include, at least a month prior to January 2, 2011, a provision applying PSD requirements to GHG
- emitting sources as of January 2, 2011, in order to give sources notice that the requirement applies and that the s tate will act as the permitting authority. We recognize that as a practical matter, some states may wish that we impose a FIP effective as of January 2, 2011, in order to avoid any period of time when the GHG - emi tting sources identified in the Tailoring Rule as subject to PSD are unable to obtain a permit due to lack of a permitting authority . We cannot impose a FIP until we have first finalized the SIP Call and given the state a reasonable period of time to make the corrective SIP submission . All this necessar ily entails , for those states, finalizing the SIP Call prior to January 2, 2011 . After the close of the comment period for this proposedPage 41 of 69

action, we will review all comments. If we determine th at the PSD S IP for any state either by its terms does not apply to sources of GHGs or has conflicting provisions that create ambiguity as to whether it applies to sources of GHGs (such as an applicability provision that explicitly excludes GHG sources, coupled with a general - authority provision that could be read to authorize permitting of GHG sources), then, for that state , we will finalize the finding that the SIP is " substantially inadequate ... to ... comply with [the PSD] requirement[s]. " At the same time, we will fi nalize a SIP Call for that state . We will make the finding of substantial inadequacy, notify the state that we have made the finding , and issue the SIP Call in a final action that we intend to sign by December 1, 2010 , and submit for publication in the Fe deral Register as soon as possible thereafter. We will notify the state of the finding of substantial inadequacy by letter and by posti ng the signed action on our Web S ite. In view of the urgency of the task , which is to ensure that a PSD permitting auth ority for affected GHG sources is in place by January 2, 2011 , we propose to give the final SIP Call an effective date of its publication date. E . Comment Period In order to deepen our understanding of what provisions are in the relevant PSD SIPs, and how they are to be interpreted, asPage 42 of 69

well as to ensure that we have a comprehensive picture of all the SIPs in this regard, we ask each state to give us the following information by the close of the comment period on this rule: 1. States with SIP PSD Applicabil ity Provisions that Do Not Appear to Include GHGs We ask that each of the states listed in table I V- 1 of this preamble

—for which we have information that their SIP PSD applicability provisions do not include GHGs, and for which we propose a finding of sub stantial inadequacy and a SIP Call

— provide the following information by the end of the comment period for this action: (a) Confirm, with citations and a copy of the relevant language, that the SIP PSD applicability provisions do not explicitly include GHG sources; (b) Identify and provide a copy of any provision that specifically precludes PSD applicability for GHG sources; (c) Identify and provide a copy of any provision of state constitution or other law, including the SIP, that may be read to limit the applicability of the PSD program to pollutants identified at a certain point in time, and therefore not to GHGs. (d) Indicate, with citations and a copy of the relevantPage 43 of 69

language, if any, whether the SIP includes general authority for the state to issue PS D permits that meet EPA requirements; (e) Indicate, with citations and a copy of the relevant language, any other provisions of the SIP or state law that may bear on the applicability of the PSD program to GHG
- emitting
sources. (f) Indicate the state ' s in terpretation as to whether the SIP, read as a whole, does or does not apply the PSD program to GHG sources or authorize the state to issue PSD permits for GHG sources that meet EPA requirements. This statement should be made by the commissioner or general counsel of the state environmental agency, or by the counterpart at the local or tribal level, or by the state Attorney General. (g) If the SIP, read as a whole, does not apply the PSD program to GHG sources or authorize the issuance of permits to GHG sou rces, indicate whether the state plans to develop adequate authority to apply the PSD program to GHG sources and to submit it to EPA as a SIP revision by December 1, 2010, which is shortly before the date on which, as discussed below, EPA intends to finali ze its finding of inadequacy and finalize the SIP Call. As discussed later in this preamble, we also ask these states to inform us, by the end of the comment period, of thePage 44 of 69

period of time (as bounded in this preamble) that they would accept as the deadline for submittal of their SIP revisions in response to a SIP Call. 2. All Other States with Approved SIPs We request that each other state

—besides the 16 states for which we propose a SIP Call

—with an approved PSD SIP (see table I V- 2) review its PSD provisio ns to confirm that the y appl y the PSD program to GHG sources. We request that each of these states inform us if it has a SIP PSD applicability provision that does not by its terms apply to pollutants " subject to regulation " or similar language, or otherwi se apply to GHG sources. In addition, we request that each of these states inform us if it has another state law provision that may have the effect of limiting PSD applicability to air pollutants covered by EPA ' s PSD program as of a certain date, and ther efore does not include GHGs. For any state whose PSD program, for any of these reasons, may not apply to GHG - emitting sources, we request the same information described in section IV.E .1 of this preamble as soon as possible during the comment period. Onc e we receive this information, if we believe it shows that the state ' s SIP PSD program does not apply to GHG sources, we will finalize a finding of substantial inadequacy and a SIP Call on the same schedule as any of the states for which we arePage 45 of 69

proposing a finding and SIP Call. F . State Actions 1. State Submission of SIP Revision Prior to Final SIP Call If a state for whose SIP we propose a finding of substantial inadequacy submits a SIP revision by December 1, 2010 that purports to correct that inadequac y, we will not finalize the finding or SIP Call for that state . Rather, we will take action on their SIP submission promptly, as discussed below. 2 . State Response to SIP Call
a. Timing of State Submittal Under CAA 110(k)(5), in notifying the state of the finding of substantial inadequacy and issuing the SIP Call , we " may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions. " We propose to allow the state 12 months from the date of the notice, which will be the date on which we sign the final action, to submit the SIP revision, unless, during the comment period, the state advises that it would not object to a shorter period

—as short as 3 weeks from the date of signature of the fi nal rule

—in which case we will establish the shorter period as the deadline . Assuming that the Administrator signs the final SIP C all on December 1, 2010, the earliest deadlinePage 46 of 69

would be December 22, 2010. The purpose of establishing the shorter period as the deadline

—assuming that state advises us that it does not object to that shorter period

—is to accommodate states that wish to ensure that a FIP is available as, in effect, a backstop to ensure that there is no gap in PSD permitting. If the state does not advise us that it does not object to a shorter deadline, then the 12
-month deadline will apply. It must be emphasized that for any state that receives a deadline after January 2, 2011, the affected GHG
- emitting sources in that state
—which are those lar ger GHG - emitters identified in the Tailoring Rule as subject to PSD through the phase - in approach

—will be unable to receive a f ederally approved permit authorizing construction or modification , and therefore will not lawfully be able to construct or modify

—from January 2, 2011 , until the date that EPA either approves the SIP submittal or promulgates a FIP. This 3
- week - to - 12
-month time period, although expedited, meets the CAA 110(k)(5) requirement as a " reasonable deadline[]. " The term " reasonable deadline [], " as it appears in that provision, is not defined. We interpret it to mean a time period that is sensible or logical, based on all the facts and circumstances. Those facts and circumstances include (i) thePage 47 of 69

state SIP development and submission process, (ii) the imperative to minimize the period when sources will be subject to PSD but not have available a PSD permitting authority to act on their permit application, and therefore will be unable to construct or modify; and (iii) the preferences of the stat e . The following elaborates on those three facts and circumstances. First, although the 12
-month period is consistent with the time period required for SIP revisions in at least one previous SIP call that EPA issued , the NOx SIP Call , 11 we recognize that a period shorter than 12 mo nths is expedited in light of the time involved in most state SIP development and submission processes. In particular, we recognize that some states may need to undertake full -blown rulemaking actions, which may typically be time
- consuming, and we acknowledge that some states may need to change their statutory provisions, which may typically be even more time
- consuming. Even so, we understand that at least some states have emergency processes that may be used to significantly exp edite action. Although this is a matter of state process, we are prepared , as described elsewhere in this preamble, to work with the state s to develop expedited methods for developing, processing, and submitting SIP revisions.
11 " Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone; Rule. " 63 FR 57356 (October 27, 1998).Page 48 of 69

Second, t he need to minimize the period when sources will be unable to construct or modify due to the lack of a permitting authority to act on their permit applications is an essential consideration . A shorter period for SIP submittal means that either the state , through the SIP rev ision that it submits on an expedited basis in light of this tight schedule , or EPA, through a FIP, will become the permitting authority shortly and will then be able to act on permit applications and issue permits that allow new construction and modificat ion of existing plants. The purposes of the PSD provisions include both the protection of the environment and the promotion of economic development,
see , e.g., CAA 160 (3)
- (4) , and the D.C. Circuit has held that the terms of the PSD provisions should be in terpreted with these goals in mind. New York v. EPA, 413 F.3d 3, 23 (D.C. Cir.), rehearing en banc den., 431 F.3d 801 ( 2005) . Accordingly, determining a " reasonable deadline[] " for the submittal of a PSD SIP revision should account for the need to promote economic development by assuring the availability of a permitting authority to process permit applications. Finally, the preference of the state is important because the deadline for submittal of the corrective SIP revision in response to a SIP Call acts as a burden on the state . If the state does not object to an earlier deadline under which it mustPage 49 of 69

operate
—which, in a sense, is contrary to the state ' s self interest because an earlier deadline typically increases burdens

—then that is an indication of the reasonableness of the deadline. We suggest the following model language that a state wishing to indicate that it does not object to a deadline shorter than 12 months could consider using in its response to our request for comments. Of course, the state is not obligated to use this specific language, and we present it solely for the convenience of the states:

U.S. EPA has proposed a finding of substantial inadequacy and SIP C all under Clean Air Act section 110(k)(5) concerning the state ' s SIP PSD appli cability provisions. Further, U.S. EPA has proposed a deadline for the state ' s submittal of a corrective SIP revision. U.S. EPA has requested the state ' s comments on the proposed deadline. In light of EPA ' s perception of the importance of having in plac e as soon as possible a PSD permitting authority for any GHG - emitting sources that may be subject to PSD requirements, the state does not object to U.S. EPA ' s establishment of a deadline of [identify the deadline]. b. Substance of State Submittal (i) Addit ion of GHGs to List of Pollutants Subject to PSD We propose to make a finding of substantial inadequacy and issue a SIP Call for each state whose SIP fails to apply the PSD program to GHG - emitting sources. Accordingly, for the state to correct its SIP, the state must submit a SIP revision thatPage 50 of 69

applies PSD to GHG sources. For those state s whose SIP applies PSD to listed air pollutants, the state may accomplish this correction in at least two different ways. First, the state may revise its SIP so that inst ead of applying PSD to sources of individually listed pollutants, the SIP applies PSD to sources that emit any "regulated NSR pollutant." We recommend that states follow this approach. It is consistent with our 2002

" NSR Reform " rule. "Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR); Final Rule and Propose d Rule," 67 FR 80186, 80240 (December 31, 2001). In addition, it would resolve any issues about whether the state has authority to issue permits for sources of PM2.5 emissions, as well as permits for sources of pollutants that EPA may subject to regulation for the first time in the future. Secondly, and as an alternative, the state may retain its approach of applying PSD to sources of individually listed pollutan ts but submit a SIP revision that include s GHGs on that list of pollutants. If a state chooses this second approach, we will approve the SIP revision as SIP strengthening. (ii) Definition and Calculation of Amount of GHGs In adding GHGs to the list of po llutants subject to PSD applicability, the state must define GHGs as a single pollutant that is the aggregate of the group of six gases : CO 2 , CH 4 , N 2 O,Page 51 of 69

HFCs, PFCs, and SF 6. As EPA stated in the Tailoring Rule, " [ t ] he final LDVR for GHGs specifies, in the rule ' s applicability provisions, the air pollutant subject to control as the aggregate group of the six GHGs * * * . Because it is this pollutant that is regulated under the LDVR, it is this po llutant to which PSD * * * appli[ es]. " 75 FR 31528. Although we propose to require that the state define GHGs as described immediately above, we solicit comment on whether the state may adopt a different definition that is at least as stringent, and, if so, what such a definition might be. We caution that a defin ition that includes more gases than the six identified above could prove to be less stringent in certain ways because it could allow greater opportunities for a source of different gases to net out of PSD. ( i i i ) Thresholds Once a state applies the PSD pro gram to GHG - emitting sources, the state must determine the threshold for emissions from those sources that will trigger PSD. In the T ailoring Rule, EPA promulgated a determination that the CAA thresholds of 100 or 250 tpy (depending on the source category ) would not apply as of January 2, 2011, or for a period of years thereafter, in light of, in part, administrative concerns . Instead, EPA promulgated a phase - in approach that limits PSDPage 52 of 69

applicability to only the largest GHG emitting sources for a period o f time. The s tate may adopt the Tailoring Rule phase - in approach into its SIP or it may adopt lower thresholds

—as low as the 100/250 tpy statutory thresholds

—but if it adopts lower thresholds, it must show that it has " adequate pers onnel [and] funding * * * to carry out, " that is, administer and implement, the PSD program with those lower thresholds, in accordance with CAA 110(a)(2)(E)(i). In the Tailoring Rule, EPA adopted a CO 2 e metric and use of short tons (as opposed to metric tons) for calculating GHG emissions in order to implement the higher thresholds. 75 FR 31530 , 31532 . As noted above, a state retains the authority to adopt lower threshold s than in the Tailoring Rule . As a result, the states are not obligated to adopt the CO 2 e metric or use of short tons; however, the state must assure that its approach is at least as stringent as the thresholds in the Tailoring Rule. (iv) State Adoption of " Regulated NSR Pollutants " Beyond this, we encourage

—but do not propose to require

—the state s for which we propose a SIP Call to submit a SIP revision to adopt the PSD applicability provision found in EPA regulations

—which is that PSD applies to " regulated NSR pollutant[s], " including any air pollutant " subject toPage 53 of 69

regulation "

—instead of simply adding GHGs to the SIP ' s list of pollutants subject to PSD . There are many advantages for a state to revise its SIP PSD applicability provisions in the manner that we encourage . First, doing so would more readily incorporate, for state law purposes, the phase - in approa ch for PSD applicability to GHG sources that EPA has developed in the Tailoring Rule and expect s to develop further through additional rulemaking. As explained in the Tailoring Rule, incorporating this phase
- in approach for state law purposes

—including St eps 1 and 2 of the phase
- in as promulgated in the Tailoring Rule and additional steps of the phase - in that EPA may promulgate in the future

—can be most readily accomplished through state interpretation of the

" subject to regulation " prong of the definition of " regulated NSR pollutant . " If, instead of adopting into its SIP the

" regulated NSR pollutant " trigger for PSD applicability, the state simply adds GHGs to its list of pollutants subject to PSD, then the SIP will not include the term " subject to regula tion " and therefore may not include any vehicle or " hook " for the state to adopt by interpretation the current and any future steps of the phase - in approach. As a result, the state may have to adopt and submi t for EPA approval additional SIP revisions to incorporate the current and future steps of the phase
- inPage 54 of 69

approach . There are other advantages to a state that adopts EPA ' s definition of " regulated NSR pollutant . " The SIP would apply PSD to sources emitting PM2.5 , thereby resolving as well the problem th at some SIPs have of failing to cover PM2.5 for PSD purposes . That is, many of the states for which we propose a SIP Call due to their SIPs ' failure to apply PSD to sources that emit GHGs also may fail to apply PSD to sources that emit PM2.5 . 12 To this po int in time, this failure has not been a problem because we have allowed the state to issue PSD permits for sources of PM2.5 emissions through what is commonly called EPA ' s

" 1997 PM 10 surrogate policy. " Under the 1997 PM 10 surrogate policy, sources and pe rmitting authorities satisfy the CAA requirements for PM2.5 in PSD permits by applying the PM 10 requirements as a surrogate for PM2.5 . Each permit that relies on our PM 10 surrogate policy is subject to review as to the adequacy of the presumption that the PM2.5 requirements are satisfied. However, we note that EPA has issued a notice of proposed rulemaking to end the prospective use of the 1997 PM 10

12 Following a 1997 review of our national ambient air quality standards ( " NAAQS " ) for particulate matter, we promulgated NAAQS for fine particles (PM2.5 ). We then designated all areas of the country as " attainment, " " nonattainment, " or unclassifiable for the PM2.5 standards, which became effective in April 2 005. Pursuant to the CAA, states are obliged to revise their PSD regulations to include the new PM2.5 standards.Page 55 of 69

surrogate policy by the end of 2010 ( 75 FR 6827, February 11, 2010 ) . We are not at this time taking action with respect to these SIPs on account of PM2.5 , but we encourage states to submit SIP revisions that apply PSD to sources of PM2.5 . In addition, the SIP would, i n effect, automatically update the state PSD program to apply PSD to any newly regulated pollu tants and thereby avoid recurrence of the present problem of a gap in the PSD program coverage for newly regulated pollutants. Finally, state adoption of EPA ' s definition of

" regulated NSR pollutant " would allow the SIP to mirror EPA regulations and the S IPs of most states, which may promote consistency and ease administration. Notwithstanding the advantages to a state of revising its SIP to appl y PSD to " regulated NSR pollutants, " we do not , at this time, propose a finding that the SIP is substantially in adequate to comply with a CAA requirement or propose to issue a SIP call that would require a SIP revision that applies PSD to

" regulated NSR pollutants. " I nstead, as noted above, our proposed finding and SIP call are limited to the failure to apply PSD t o GHG - emitting sources, and the SIP revision may simply include GHGs on the state ' s list of pollutants subject to PSD. We do not propose to require the " regulated NSR pollutant " approach because that approach is not necessary to correct thePage 56 of 69

substantial in adequacy

—which is the failure of the PSD SIP to cover GHG sources

—for which we propose to issue a SIP Call. Rather, that substantial inadequacy may be corrected more narrowly by listing GHGs. 3. General Authority Provision As noted earlier in this preambl e , some SIPs that apply PSD to sources of specified pollutants, not including GHGs, may also include a general authority provision that provides general authority to issue PSD permits that meet EPA requirements. For states that include such general author ity, it may be possible to read their SIPs as a whole to authorize the issuance of PSD permits to GHG sources. In that case, EPA would not finalize a finding of substantial inadequacy or a SIP Call for that state . Even so, EPA encourages state s with the se SIP provisions to submit a SIP revision that applie s PSD to GHG - emitting sources. Such a SIP revision would add clarity to the SIP and, in general, carry the benefits described earlier in this preamble . G . EPA Actions on SIP Submittals; Findings of Fai lure to Submit and Promulgation of FIPs 1. Actions on SIP Submittals As noted above, for any state for which EPA proposes a finding of substantial inadequacy and SIP Call but that submits a SIP revision before December 1, 2010, EPA will not issue aPage 57 of 69

final f inding of s ubstantial inadequacy or a SIP Call . Instead, EPA will take action on the SIP submittal as quickly as possible. By the same token, for any state for which EPA has issued a final finding of substantial inadequacy and a SIP Call , if the state submits the SIP revision within the submittal deadline, then EPA will not issue a finding of failure to submit or promulgate a FIP. Instead, EPA will take action on the SIP submittal as quickly as possible. We fully recognize

—and we encourage the state s to keep firmly in mind

—that once the January 2, 2011 , date for PSD applicability for certain GHG sources arrives, until we approve the SIP revision, the affected sources will not be able to receive a f ederally approved PSD permit authorizing construction
or modification. 13 In light of this potential for burden on the affected sources, we intend to act on any SIP submittals that we receive as promptly as possible. In light of the need to act promptly on SIP submittals, we are prepared to expedite our action b y parallel -processing the SIP submittal, upon request of the state . Under this approach, the state sends us the draft of the SIP revision that it expects
13 The source would be able to receive a state
- issued permit, but the lack of a federally approved permit means that the source would not be in accordance with federal requirements if it constructed or modified.Page 58 of 69

to issue for public comment at the state level, in accordance with CAA 110 (a)(2) , and we will publish a proposed approval of that draft SIP revision. In addition, at the same time the state solicits such public comment at the state level, we will solicit public comment at the f ederal level. If, subsequently, the SIP revision that the state adopts and submits to EPA is substantially similar to the draft on which EPA solicited comment, then EPA will proceed to take final action on the SIP submittal and will not re
- notice it for public comment. This process will significantly shorten the time EPA needs to act on the SIP revision. 2. Findings of Failure to Submit and Promulgation of FIPs If the state does not meet its SIP submittal deadline, we will immediately issue a finding of failure to submit a required SIP submission under CAA 110(c)(1)(A) and immedia tely thereafter issue a FIP. This timing for FIP promulgation is authorized under CAA 110(c)(1), which authorizes us to promulgate a FIP " at any time within 2 years after " finding a failure to submit a required SIP submission. We discuss our approach to the FIP in the companion notice to this rulemaking concern ing FIPs for failure to submit the required PSD SIP revision. 3. Rescission of the FIP After we have promulgated a FIP, it must remain in placePage 59 of 69

until the state submits a SIP revision and we approve that SIP revision. CAA 110(c)(1). Under the present circumstances, we will act on a SIP revision to apply the PSD program to GHG sources as quickly as possible and, upon request of the state , w ill parallel
-process the SIP submittal in the manner describe d earlier in this preamble . If we approve such a SIP revision, we will, at the same time, rescind the FIP. We discuss this approach in the companion notice to this rulemaking c oncern ing FIPs for failure to submit the required PSD SIP revision. H . Streaml ining the State Process for SIP Development and Submittal As stated earlier in this preamble , we recognize that the deadline we are giving state s to submit their SIP revisions is expeditious. We are prepared to work with the state s to develop methods to s treamline the state administrative process, although we recognize that the state s remain fully in charge of their own state processes. We solicit recommendations during the comment period for ways to streamlin e the state process for adopting and submittin g these SIPs , and to streamline or simplify what is required for the SIP submittal . For example, we may streamline the process as it concerns public hearing requirements. Many states require that the underlying state regulation that the state intends to developPage 60 of 69

into the SIP submittal undergo a public hearing. In addition, the CAA requires that the state provide a public hearing on the proposed SIP submittal, under CAA 110(a)(2). EPA will accept the hearing that the state holds on the underlying regulatio n as meeting the requirement for the hearing on the SIP submittal, as long as the state provides adequate public notice of the hearing, and EPA will not require a separate SIP hearing. I . Sanctions Under CAA 179(a)(3)(A), if EPA finds that a state failed to submit a PSD SIP revision as required under a SIP Call , then a mandatory sanctions clock begins to run, so that if the state does not submit the required SIP revision within 18 months, EPA must impose one of two sanctions identified under CAA 179; if the state does not submit the required SIP revision within another 6 months, EPA must impose the second of the sanctions. However, because each sanction applies only to nonattainment areas, it has been a longstanding EPA position that a finding that a state has failed to submit a required SIP revision for a PSD area will not trigger mandatory sanctions. The two sanctions are described in CAA 179(b) and include: (i) " highway sanctions, " which are " a prohibition, applicable to a nonattainment area, on the appr oval " of certain highway construction projects or certain federal grants for highwayPage 61 of 69

construction, CAA 179(b)(1); and (ii) " [i]n applying the emission offset requirements of [CAA 173] to new or modified sources or emissions units for which a permit is requ ired under this part, the ratio of emissions reductions to increased emissions shall be at least 2 to 1. " CAA 179(b)(2). Each of these sanctions applies, by its terms, to nonattainment areas. That is, as just quoted, CAA 179(b)(1) limits the application of the highway sanctions " to a nonattainment area, " and the offsets sanctions under CAA 173(c) apply only to nonattainment areas. See, e.g., CAA 173(c)(1) (referring to " any offset requirement under this part [D], " which is entitled, " Plan Requirements fo r Nonattainment Areas " ); 182(b)(5) (offset requirement for ozone moderate areas); 182(c)(10) (offset requirement for ozone serious areas); 182(d)(2) (offset requirement for ozone severe areas); 182(e)(1) (offset requirement for ozone extreme areas). Neither of the mandatory sanctions provided under CAA 179(b) applies to attainment/unclassifiable areas. As a result, a finding that a state has failed to submit a required SIP revision will not trigger mandatory sanctions. J . Title V We note that a number of states may have a similar problem with their approved title V operating permit programs, ( i.e. ,Page 62 of 69

that their title V programs do not apply to GHG
- emitting
sources ) . We intend to address this issue through separate rulemaking. V. Statutory and Executive Order Reviews 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 submitt ed this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. Although this action asks states to provide information during the comment period, the information requested, which concerns whether the states have authority to regulate GHGs under their SIP PSD provisions, is substantiall y similar to the information already requested of the states in the Tailoring Rule. T he OMB has previously approved the information collection requirements contained in the existing regulations for PSD ( see, e.g. , 40 CFR 52.21) and title V ( see 40 CFR par ts 70 and 71) under the provisions of the Paperwork Reduction Act ,Page 63 of 69

44 U.S.C. 3501 et seq . and has assigned OMB control number 2060
- 0003 and OMB control number 2060
- 0336 respectively. The OMB control numbers for EPA ' s regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. F or purposes of assessing the impacts of this notice on small entities, small entity is defined as: (1) a small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards ( see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not
- for -profit enterprise that is independently owned and oper ated and is not dominant in its field.Page 64 of 69

This proposed rule will affect states and will not, in and of itself, directly affect sources. In addition, although this rule could lead to federal permitting requirements for certain sources, those sources are large emitters of GHGs and tend to be large sources. After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. D. Unfunde d Mandates Reform Act This rule does not contain a f ederal mandate that may result in expenditur es of $100 million or more for s tate, local, and tribal governments, in the aggregate, or the private sector in any one year. The action may impose a duty on c ertain state, local or tribal governments to meet their existing obligation for PSD SIP submittal , but with lesser expenditures . Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. This rule is also not subject to the requir ements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. E. Executive Order 13132
- Federalism This action does not have federalism implications. It willPage 65 of 69

not have substant ial direct effects on the states, on the relationship between the national government and the s tates , or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 . This action merely pr escribes EPA ' s action for states that do not meet their existing obligation for PSD SIP submittal. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifical ly solicits comment on this proposed rule from state and local officials. F. Executive Order 13175
- Consultation and Coordination with Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67 249, November 9, 20 00). In this action, EPA is not addressing any tribal implementation plans. This action is limited to states that do no t meet their existing obligation for PSD SIP submittal. Thus, Executive Order 13175 does not apply to this action. Although Executive Order 13175 does not apply to this proposed rule, EPA specifically solicits additional comment on this proposed action from tribal officials. G. Executive Order 13045
- Protection of Children fromPage 66 of 69

Environmental Health Risks and Safe ty Risks EPA interprets EO 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 EO has the potential to influence the regulation. This action is not subject to EO 13045 because it merely prescribes EPA ' s action for states that do not meet their existing obligation for PSD SIP submittal. H. Executive Order 13211
- Actions Concerning Regulations That Significantly Affect Energy Supp ly, Distribution, or Use This action is not a " significant energy action " as defined in Executive Order 13211 (66 FR 28355(May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This a ction merely prescribes EPA ' s action for states that do not meet their existing obligation for PSD SIP submittal. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 ( " NTTAA " ) , Public Law No. 104
- 113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are techni cal standards ( e.g. ,Page 67 of 69

materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agen cy decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. J. Executive Order 12898
- Federa l Actions to Address Environmental Justice in Minority Populations and Low
- Income Populations Executive Order 12898 (59 FR 7629, February 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 addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, polici es, and activities on minority populations and low
- income populations in the U.S. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low
- income populationsPage 68 of 69

because it does not affect the level of protection provided to human health or the environment. This proposed rule merely prescribes EPA ' s action for states that do not meet their existing obligation for PSD SIP submittal. VI. Statutory Authority The statu tory authority for this action is provided by sections 101, 111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401, 7411, 7414, 7416, and 7601).Page 69 of 69 – Action to Ensure Authority to Issue Permits under

the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call

Page 69 of 69 List of Subjects in 40 CFR Part 52 Air pollution control, Carbon dioxide, Carbon dioxide equivalents, Carbon monoxide, Environmental protection, Greenhouse gases, Hydrofluorocarbons, Intergovernmental relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone, Particulate matter, Perfluorocarbons, Reporting and recordkeeping requirements, Sulfur hexa fluoride, Sulfur oxides, Volatile organic compounds.

________________________ Dated:

_________________________ Lisa P. Jackson, Administrator.