U.S. Environmental Protection Agency 

Documentation of OMB Review Under Executive Order 12866 

Title of Action: 

Docket#: FRL#: RIN:

This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 

12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available 

a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also: 

(1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and 

Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if applicable, 

an assessment of the potential costs and benefits, as well as additional information for those actions that are 

determined to be economically significant under the E.O. (Information requirements are described in sections 

6(a)(3)(B) and (C)). 

(2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was 

subsequently issued, using a method that is complete, clear, and simple. 

(3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.

For this regulatory action, were substantive changes made to information reviewed under E.O. 

12866? [Please check the appropriate answer.]

No. [In the docket, include the information identified in item (1) below.]

Yes. [In the docket, include the information identified in items (1) – (3) below.]

Accordingly, the Agency has included this form and the following information in the public 

docket for this regulatory action: [Please check the appropriate information.]

(1) A copy of the information that was provided to OIRA for review under the E.O. 

(2) Documentation of any substantive changes made to the draft regulatory text that was 

submitted to OIRA when compared with what was subsequently made publicly available. 

The documentation is provided on the pages following this form. Changes made at the 

suggestion or recommendation of OIRA, if any, are clearly identified through attribution to 

OIRA. EPA has used one or more of the following methods to note changes: [Select the 

appropriate option(s).]

(a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made. 

(b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes 

to show the substantive changes that were made. 

(c) Note to the file - A document that identifies the substantive changes that were made, 

with page and paragraph references to the draft regulatory action that was submitted. 

If you have any questions about this regulatory action or this documentation, please call the 

contact: 

Name: Email: Phone: 

Revised 05/05/2010 
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6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-HQ-OAR-2010-0107; FRL-xxxx-x] 

RIN 2060-AQ45 

Action to Ensure Authority to Issue Permits under the Prevention 

of Significant Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan 

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is establishing a federal implementation plan 

(FIP) to apply in each of seven states that have not submitted 

by their established deadline a corrective state implementation 

plan (SIP) revision to apply their Clean Air Act (CAA or Act) 

Prevention of Significant Deterioration (PSD) program to sources 

of greenhouse gases (GHGs). This action will ensure that a 

permitting authority – EPA - is available in these states as of 

January 2, 2011, when PSD becomes applicable to GHG-emitting 

sources, to issue preconstruction PSD permits and thereby 

facilitate construction or expansion. The seven states are: 

Arizona: both Pinal County and Rest of State (excluding Maricopa 

County, Pima County, and Indian Country), Arkansas, Florida, 

Idaho, Kansas, Oregon, and Wyoming. This action is related to 

EPA’s recently promulgated final rule, published on December 13, 

Deleted: In this rulemaking, 

Deleted: New Source Review (NSR) 

Deleted: process the sources’

Deleted: permit applications
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2010, which we call the GHG PSD SIP call, and in which EPA made 

a finding of substantial inadequacy and issued a SIP call for 

these seven states and several others on grounds that their SIPs 

do not apply the PSD program to GHG-emitting sources. 

DATES: This action is effective on [INSERT DATE OF 

PUBLICATION.] 

ADDRESSES: EPA has established a docket for this rulemaking 

under Docket ID No. EPA-HQ-OAR-2010-0107. All documents in the 

docket are listed in the www.regulations.gov index. Although 

listed in the index, some information is not publicly available, 

e.g., 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 

in 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) 566-1742. 

FOR FURTHER INFORMATION CONTACT: Ms. Cheryl Vetter, Air Quality 

Policy Division, Office of Air Quality Planning and Standards 

Field Code Changed

Field Code Changed
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(C504-03), Environmental Protection Agency, Research Triangle 

Park, NC 27711; telephone number: (919) 541-4391; fax number: 

(919) 541-5509; e-mail address: vetter.cheryl@epa.gov. 

For information related to a specific state, local, or 

tribal permitting authority, please contact the appropriate EPA 

regional office: 

EPA 

regional 

office 

Contact for regional office 

(person, mailing address, 

telephone number) Permitting authority 

I Dave Conroy, Chief, Air 

Programs Branch, 

EPA Region 1, 5 Post Office 

Square, Suite 100, Boston, MA 

02109-3912, (617) 918-1661. 

Connecticut, 

Massachusetts, Maine, 

New Hampshire, Rhode 

Island, and Vermont. 

II Raymond Werner, Chief, Air 

Programs Branch, EPA Region 2, 

290 Broadway, 25th Floor, New 

York, NY 10007-1866, (212) 

637-3706. 

New Jersey, New York, 

Puerto Rico, and Virgin 

Islands. 

III Kathleen Cox, Chief, Permits 

and Technical Assessment 

Branch, EPA Region 3, 1650 

Arch Street, Philadelphia, PA 

19103-2029, (215) 814-2173. 

District of Columbia, 

Delaware, Maryland, 

Pennsylvania, Virginia, 

and West Virginia. 

IV Lynorae Benjamin, Chief, 

Regulatory Development 

Section, Air, Pesticides and 

Toxics Management Division, 

EPA Region 4, Atlanta Federal 

Center, 61 Forsyth Street, SW, 

Atlanta, GA 30303-3104, (404) 

562-9033. 

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. 

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VI Jeff Robinson, Chief, Air 

Permits Section, EPA Region 6, 

Fountain Place 12th Floor, 

Suite 1200, 1445 Ross Avenue, 

Dallas, TX 75202-2733, (214) 

665-6435. 

Arkansas, Louisiana, 

New Mexico, Oklahoma, 

and Texas. 

VII Mark Smith, Chief, Air 

Permitting and Compliance 

Branch, EPA Region 7, 901 

North 5th Street, Kansas City, 

KS 66101, (913) 551-7876. 

Iowa, Kansas, Missouri, 

and Nebraska. 

VIII Carl Daly, Unit Leader, Air 

Permitting, Monitoring & 

Modeling Unit, EPA Region 8, 

1595 Wynkoop Street, Denver, 

CO 80202-1129, (303) 312-

6416. 

Colorado, Montana, 

North Dakota, South 

Dakota, Utah, and 

Wyoming. 

IX Gerardo Rios, Chief, Permits 

Office, EPA Region 9, 75 

Hawthorne Street, San 

Francisco, CA 94105, (415) 

972-3974. 

Arizona; California; 

Hawaii and the Pacific 

Islands; Indian Country 

within Region 9 and 

Navajo Nation; and 

Nevada. 

X Nancy Helm, Manager, Federal 

and Delegated Air Programs 

Unit, EPA Region 10, 1200 

Sixth Avenue, Suite 900, 

Seattle, WA 98101, (206) 553-

6908. 

Alaska, Idaho, Oregon, 

and Washington. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me?

Entities affected by this rule include the seven state and 

local permitting authorities1 identified by EPA to have not 

submitted by their deadline a SIP revision that would apply PSD 

 

1

 For convenience, we refer to "states" in this rulemaking to 

collectively mean states and local permitting authorities. 
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requirements to GHG-emitting sources. In the GHG PSD SIP call,2

EPA determined that these seven states have SIPs that are 

substantially inadequate to achieve CAA requirements because 

their PSD programs do not apply to GHG-emitting sources, and EPA 

established that deadline. 

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.3

 This independent obligation on sources is specific to PSD 

and derives from CAA section 165(a). Any source that is subject 

to a state PSD air permitting regulation not structured to apply 

to GHG-emitting sources will rely on this rule to obtain a 

permit that contains emission limitations that conform to 

requirements under CAA section 165(a). The majority of entities 

potentially affected by this action are expected to be in the 

following groups: 

Industry Group NAICSa

Utilities (electric, natural 

gas, other systems) 

2211, 2212, 2213 

 

2

 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 – Final rule, 75 FR 77698 (December 13, 2010).

3

 Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 2010). 

Deleted: Call

Deleted: has 

Deleted: potentially 
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Manufacturing (food, beverages, 

tobacco, textiles, leather) 

311, 312, 313, 314, 315, 316 

Wood product, paper 

manufacturing 

321, 322 

Petroleum and coal products 

manufacturing 

32411, 32412, 32419 

Chemical manufacturing 3251, 3252, 3253, 3254, 3255, 

3256, 3259 

Rubber product manufacturing 3261, 3262 

Miscellaneous chemical products 32552, 32592, 32591, 325182, 

32551 

Nonmetallic mineral product 

manufacturing 

3271, 3272, 3273, 3274, 3279 

Primary and fabricated metal 

manufacturing 

3311, 3312, 3313, 3314, 3315, 

3321, 3322, 3323, 3324, 3325, 

3326, 3327, 3328, 3329 

Machinery manufacturing 3331, 3332, 3333, 3334, 3335, 

3336, 3339 

Computer and electronic 

products manufacturing 

3341, 3342, 3343, 3344, 3345, 

4446 

Electrical equipment, 

appliance, and component 

manufacturing 

3351, 3352, 3353, 3359 

Transportation equipment 

manufacturing 

3361, 3362, 3363, 3364, 3365, 

3366, 3366, 3369 

Furniture and related product 

manufacturing 

3371, 3372, 3379 

Miscellaneous manufacturing 3391, 3399 

Waste management and 

remediation 

5622, 5629 

Hospitals/nursing and 

residential care facilities 

6221, 6231, 6232, 6233, 6239 

Personal and laundry services 8122, 8123 

Residential/private households 8141 

Non-residential (commercial) Not available. Codes only 

exist for private households, 

construction and leasing/sales 

industries. a

 North American Industry Classification System. 
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B. How is the preamble organized?

The information presented in this preamble is organized as 

follows: 

I. General Information 

A. Does this action apply to me? 

B. How is the preamble organized? 

II. Overview of Rulemaking 

III. Final Action and Response to Comments 

A Authority to Promulgate a FIP 

B. Timing of GHG PSD FIP 

C. Substance of GHG PSD FIP 

D. Period for GHG PSD FIP to Remain in Place 

E. Primacy of SIP Process 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866 – Regulatory Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 – Federalism 

F. Executive Order 13175 – Consultation and Coordination 

with Indian Tribal 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 LowIncome Populations 

K. Determination under Section 307(d) 

L. Congressional Review Act 

V. Judicial Review 

VI. Statutory Authority 

II. Overview of Rulemaking 

In this rulemaking, EPA is establishing a FIP, which we 

call the GHG PSD FIP, or simply, the FIP, to apply in each of 

seven states that have not submitted by December 22, 2010, a 

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Deleted: Context

Deleted: Context

Deleted: the deadline they elected, 
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corrective SIP revision to apply their CAA PSD program to 

sources of GHGs. This is the deadline EPA established after the 

affected states indicated that they would not object to it, to 

ensure that a permitting authority would be in place as of 

January 2, 2011 to facilitate issuance of PSD permits for 

construction and modification of sources. 

 This preamble should be read in conjunction with the 

preamble for the proposed rulemaking for this action, which we 

call the GHG PSD FIP proposal or the FIP proposal;4

 and the SIP 

call rulemaking that is associated with this rulemaking, 

including (i) the proposed SIP call rulemaking, which we call 

the GHG PSD SIP call proposal or the SIP call proposal, and 

which accompanied the FIP proposal,5

 and (ii) the final SIP call 

rulemaking, which we call the GHG PSD SIP call or the SIP call. 

Background information for this rulemaking is found in those 

rulemakings and in the rulemakings referenced therein and will 

not be reiterated here. 

 

4 Action to Ensure Authority to Issue Permits under the 

Prevention of Significant Deterioration Program to Sources of 

Greenhouse Gas Emissions: Federal Implementation Plan- Proposed 

rule, 75 FR 53883 (September 2, 2010). 

 

5

 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 - Proposed rule, 75 FR 53892 (September 2, 2010). 

Deleted: CAA’s NSR

Deleted: 

Deleted: ,
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 By notices dated September 2, 2010, EPA published as 

companion actions the SIP call proposal and the FIP proposal. 

In the SIP call proposal, EPA proposed to find that 13 states 

with EPA-approved SIP PSD programs are substantially inadequate 

to meet CAA requirements because they do not appear to apply PSD 

requirements to GHG-emitting sources. For each of these states, 

EPA proposed to require the state (through a SIP call) to revise 

its SIP as necessary to correct such inadequacies. In the FIP 

proposal, EPA proposed a FIP to apply in any state that is 

unable to submit, by its deadline, a corrective SIP revision to 

apply the PSD program to sources of GHGs. The FIP would provide 

authority to EPA to issue PSD permits for construction or 

modification of appropriate GHG sources in the state. 

 On December 1, 2010, EPA promulgated the GHG PSD SIP call, 

and EPA published it by notice dated December 13, 20107

. . In 

the SIP call, EPA finalized its finding that the SIPs of 13 

states (comprising 15 state and local programs) are 

substantially inadequate to meet CAA requirements because they 

do not apply PSD requirements to GHG-emitting sources. In 

addition, EPA finalized a SIP call for each of these states, 

 

7

 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 - Final Rule, 75 FR 77698 (December 13, 2010).

Deleted: .6
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which required the state to revise its SIP as necessary to 

correct such inadequacies. Further, EPA established a deadline 

for each state to submit its corrective SIP revision. These 

deadlines, which differed among the states, ranged from December 

22, 2010, to December 1, 2011. 

Seven states received a SIP submittal deadline of December 

22, 2010, based on information received from each state during 

the public comment period that they would not object to this 

deadline. These seven states are: (1) Arizona: both Pinal 

County and Rest of State (excluding Maricopa County, Pima 

County, and Indian Country);8 (2) Arkansas; (3) Florida; (4) 

Idaho; (5) Kansas; (6) Oregon; and (7) Wyoming. 

 On December 23, 2010, EPA issued a finding under CAA 

section 110(c)(1)(A) that each of the seven states “failed to 

make [the] required submission” of the corrective SIP callmandated SIP revision by its December 22, 2010 deadline. EPA 

notified each state of the finding by letter. Those letters 

are located in the docket for this rulemaking. 

III. Final Action and Response to Comments 

A. Authority to Promulgate a FIP

 

8

 EPA issued to Arizona a separate finding of substantial 

inadequacy, SIP call, and deadline for SIP submittal for each of 

Pinal County and for the rest of the state (excluding Maricopa 

County, Pima County, and Indian Country). 

Deleted: 

Deleted: the Administrator

Deleted: The Administrator issued the 

findings in letters to the Governor 

of each state.
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In this rulemaking, EPA is finalizing the GHG PSD FIP as 

proposed for each of the seven states: (1) Arizona: both Pinal 

County and Rest of State (excluding Maricopa County, Pima 

County, and Indian Country)9

; (2) Arkansas; (3) Florida; (4) 

Idaho; (5) Kansas; (6) Oregon; and (7) Wyoming. 

The CAA authority for EPA to promulgate a FIP is found in 

CAA section 110(c)(1), which provides – 

The Administrator shall promulgate a Federal 

implementation plan at any time within 2 years after 

the Administrator – (A) finds that a State has failed 

to make a required submission ... unless the State 

corrects the deficiency, and [EPA] approves the plan 

or plan revision, before the Administrator promulgates 

such [FIP]. 

 As noted earlier in this preamble, on December 23, 2010, 

EPA issued a finding that each of the seven states affected by 

this rule “failed to make [the] required submission” of the 

corrective SIP call-mandated SIP revision by its December 22, 

2010 deadline. Accordingly, under CAA section 110(c)(1), EPA is 

required to promulgate a FIP for each of the states. 

 It should be noted that EPA specifically proposed the FIP 

for six of the seven states affected by this rulemaking, all 

except for Wyoming. EPA did not include Wyoming among the 

 

9

 In this rulemaking, EPA is finalizing for Arizona a separate 

GHG PSD FIP for each of Pinal County and for the rest of the 

state (excluding Maricopa County, Pima County, and Indian 

Country). 

Deleted: above

Deleted: the Administrator 
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states for which EPA specifically proposed the SIP call, and, as 

a result, did not include Wyoming among the states for which EPA 

specifically proposed the FIP. However, in the proposed SIP 

call, EPA stated that it was soliciting comment on all the other 

states, and, if EPA received information indicating that another 

state should receive the SIP call, then EPA would, without a 

supplemental or further proposal, issue a final SIP call for 

that other state10. Similarly, EPA stated in the FIP proposal 

that if EPA issued a SIP call for that other state, and the 

other state did not submit a corrective SIP revision by its 

deadline, then, EPA would finalize the FIP for that other state, 

too.11

We reiterate that each of the seven states affected by this 

rulemaking specifically indicated to EPA that it preferred that 

EPA promulgate a FIP to take effect by January 2, 2011 – when 

sources in the state become subject to PSD – rather than EPA not 

promulgate a FIP until a later time. This is because each state 

sought to assure that, as of January 2, 2011, a permitting 

 

10 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 - Proposed rule, 75 FR 53,895-6 (September 2, 2010). 

11 Action to Ensure Authority to Issue Permits under the 

Prevention of Significant Deterioration Program to Sources of 

Greenhouse Gas Emissions: Federal Implementation Plan- Proposed 

rule, 75 FR 53,886 (September 2, 2010). 

Deleted: It should be reiterated
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authority for GHG-emitting sources would be in place in the 

state. These states made this choice by indicating that they 

did not object to EPA establishing a SIP submittal date of 

December 22, 2010, when EPA made clear in the proposed SIP call 

and FIP that if the state did not submit the required SIP 

revision by that date, then EPA would promulgate the FIP the 

next day. 75 FR at 53904/2 (proposed SIP call); id. at 53889/2 

(proposed FIP). For the most part, the remaining states that 

were subject to the SIP call indicated a later SIP submittal 

date, but they believe that although this will mean a short 

delay in the availability of a permitting authority for GHGemitting sources in their state, that delay will not adversely 

affect their sources. EPA regional and headquarters officials 

conferred extensively with state officials concerning the 

states’ progress and plans and with the National Association of 

Clean Air Agencies.12 

 In this rulemaking, EPA is not taking final action to 

promulgate a FIP for any of the other states which EPA included 

in the FIP proposal. This is because for each of the other 

states, either EPA did not finalize the SIP call or EPA did 

 

12 Declaration of Gina McCarthy, ¶¶4-5, pp. 3-4, “EPA's Response 

To Motions To Stay," Coalition for Responsible Regulation v. 

EPA, No. 09-1322 (and consolidated cases) (McCarthy 

Declaration). 

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finalize the SIP call but established a SIP submittal deadline 

that has not yet arrived. As a result, EPA has not issued a 

finding of failure to submit the required SIP revision for any 

of these other states. It continues to be EPA’s intent that if 

any of these other states does not submit the required SIP 

revision by its deadline, then EPA will immediately issue a 

finding of failure to submit a required SIP submission and 

immediately promulgate a GHG PSD FIP for that state. 

In comments received, some commenters stated, "Remarkably, 

EPA states that it will also directly promulgate a SIP call and 

FIP for any states it has inadvertently omitted from its notice 

of proposed rulemaking." Although the commenters do not 

elaborate upon this statement, they seem to imply that it would 

be improper for EPA to finalize a FIP for such states because we 

did not provide adequate notice and opportunity for comment. 

The only state for which this comment may be relevant is 

Wyoming, as noted earlier in this preamble. We disagree with 

the commenters. In the proposal, we listed the states with 

approved SIP PSD programs for which we were not proposing a 

finding of substantial inadequacy and a SIP call, and so were 

not proposing a FIP. But we went on to specifically solicit 

comment on whether each of those states merited a finding, SIP 

Deleted: Commenters 
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call,13 and, ultimately, a FIP; and we included citations to the 

relevant SIP provisions.14 Moreover, we generally described the 

circumstances under which those states may merit a FIP. As a 

result, commenters had adequate notice that EPA could ultimately 

finalize a FIP for those states if and when they missed their 

SIP submittal deadlines, and they had full opportunity to 

comment if they had relevant views or information. This was 

discussed in greater detail in the SIP call rulemaking 75 FR at 

77715/6. 

B. Timing of GHG PSD FIP

 In the GHG PSD FIP proposal, we stated: 

 If any of the states for which we issue the SIP 

Call does not meet its SIP submittal deadline, we will 

immediately issue a finding of failure to submit a 

 

13 During the comment period, Wyoming did send information 

indicating that, in Wyoming’s view, Wyoming did not have legal 

authority to apply PSD to GHG-emitting sources and therefore 

Wyoming should be included in the SIP call. A Wyoming 

environmental group provided comments during the comment period 

saying that it believed Wyoming did have legal authority to 

apply PSD to GHG-emitting sources. Accordingly, it is clear 

that the solicitation of comment was sufficient notice to the 

public. More detailed information regarding Wyoming and other 

states covered in this rulemaking may be found in the 

“Supplemental Information Document for Final 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,” located in the 

docket for this rulemaking. 

14 Thus, commenters are incorrect in characterizing EPA as having 

“inadvertently omitted [Wyoming] from its notice of proposed 

rulemaking.” 

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required SIP submission, under CAA section 

110(c)(1)(A), and immediately thereafter promulgate a 

FIP for the state. This timing for FIP promulgation 

is authorized under CAA section 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 intend to take these actions 

immediately in order to minimize any period of time 

during which larger-emitting sources may be under an 

obligation to obtain PSD permits for their GHGs when 

they construct or modify, but no permitting authority 

is authorized to issue those permits. 

75 FR at 53,889/2. 

 In this final rulemaking, we are proceeding in the same 

manner that we proposed, and for the same reasons. That is, we 

are exercising our discretion to promulgate the FIP for each of 

the seven affected states “immediately in order to minimize any 

period of time during which larger-emitting sources may be under 

an obligation to obtain PSD permits for their GHGs when they 

construct or modify, but no permitting authority is authorized 

to issue those permits.” 75 FR at 53889/2. We believe that 

acting immediately is in the best interests of the states and 

the regulated community. 

 EPA received comments that the process EPA has employed in 

this action, which was to propose the FIP as a companion rule to 

the proposed SIP call, and then to finalize the FIP immediately 

after making a finding that a state has not submitted the 

required SIP revision by its deadline, “is not how CAA section 
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110 works or how Congress intended it to work.” The commenter 

added that— 

[O]nly after a state has ... failed to [submit a SIP 

revision] after an applicable period as specified in 

the CAA or EPA regulations ... and after EPA has made 

a determination that the SIP revision is deficient in 

one or more respects, may the Agency step in to 

propose a FIP rule. And only after taking that step 

could EPA then proceed ... [to take final action on 

the FIP.] Notwithstanding EPA’s strained and out-ofcontext emphasis on the isolated sentence fragment, 

“at any time within,” the very fact that the CAA 

affords EPA up to two full years in which to complete 

the cooperative task of considering whether a FIP is 

needed and how such a plan should be fashioned, and 

the corollary fact that the Act does not mandate any 

federal takeover in less than two years, militate 

against EPA’s approach here to FIP rulemaking. In 

particular, those facts undermine EPA’s assumption 

that it need not take the time to develop a proposed 

plan specifically directed at remedying identified 

deficiencies in a given state submission, and to give 

states and the regulated community a meaningful 

opportunity to comment on a proposed FIP that has been 

specifically developed to address the individual needs 

and circumstances of such a state. (Emphasis in 

original.) 

 

 EPA disagrees with these comments. As we stated in the 

proposed rule, CAA section 110(c)(1)(A) authorizes EPA to 

promulgate a FIP “at any time within 2 years after” finding a 

failure to submit a required SIP revision. We are promulgating 

the FIP immediately because we wish to minimize any disruption 

in permitting for the larger GHG-emitting sources and we are 

doing so after consultation with the affected states. The seven 

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states that are the subject of this rulemaking told EPA that 

they would not object to the promulgation of a FIP at the 

earliest possible deadline, or December 22, 2010, because that 

would ensure a permitting authority would be in place as of 

January 2, 2011. Without the FIP, these states would be without 

an approved program to issue PSD permits for GHG-emitting 

sources until the states submit, and EPA approves, a SIP 

revision. The FIP provides sources in these states an immediate 

mechanism to obtain required permits for construction and 

modification until the revised SIPs are approved. 

 As for commenters’ analysis of CAA section 110(c), that 

provision, by its terms, imposes no constraints on when EPA may 

propose a FIP. This stands in contrast to other CAA provisions 

that do impose requirements for the timing of proposals. See 

CAA sections 109(a)(1)(A), 111(b)(1)(B). In light of the lack 

of constraints in CAA section 110(c), EPA was free to propose 

the FIP at the same time that EPA proposed the SIP call. We do 

not agree that the overall construct of CAA section 110 imposes 

the implicit constraints that the commenter identifies. 

 Instead, what is important is that for each of the 13 

states for which EPA specifically proposed the FIP, which were 

the same as the ones for which EPA proposed the SIP call, the 

public had adequate notice of the circumstances under which EPA 

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proposed that the state would become subject to the FIP. Those 

circumstances were that if EPA finalized the SIP call, as 

proposed, for the state, and if the state did not submit a SIP 

revision applying its PSD program to GHG-emitting sources by the 

deadline, EPA would establish a FIP for that state. In fact, 

EPA did finalize the SIP call for all but one of those 13 states 

and is now finalizing the FIP for six of them. Further, EPA 

received comments on the proposed FIP from several states and/or 

industries located in states for which EPA proposed the FIP, 

which indicates that the FIP proposal provided adequate notice. 

See, e.g., comments identified in the rulemaking docket as 

document numbers 0084.1 (Texas), 0055.1 (Arkansas), 0066.1

(Texas Industry Project), and 0109.1 (National Mining 

Association). 

 Although for Wyoming EPA did not specifically propose the 

SIP call or FIP, the public had the same opportunity to comment 

on the prospect of a FIP for Wyoming as the public did for the 

states for which EPA did specifically propose the FIP. This is 

because EPA solicited comment on whether to issue a SIP call for 

Wyoming (along with other states with approved PSD programs); 

made clear that if EPA received certain information, EPA would 

finalize the SIP call for Wyoming; and, further, made clear that 

if EPA issued a SIP call for Wyoming and Wyoming did not submit 

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the required SIP by Wyoming’s deadline, then EPA would finalize 

the FIP. In fact, Wyoming commented on the FIP. See comment 

identified in the rulemaking docket as document number 0079.1. 

 Moreover, EPA was clear that for each state subject to the 

SIP call that did not submit the required SIP revision by its 

SIP submittal deadline, EPA would immediately make a finding of 

failure to submit and immediately promulgate a FIP. EPA 

explained that this approach was needed to assure the 

availability of a permitting authority for sources in the state. 

 Finally, each of the states and the public in general had 

adequate notice of the terms of the FIP as it would apply in any 

state. Specifically, EPA indicated that the FIP would apply PSD 

to GHG-emitting sources at the Tailoring Rule thresholds. 

 Therefore, the FIP proposal was clear as to the 

circumstances under which EPA proposed to promulgate a FIP, the 

timing for the FIP, and the terms of the FIP. Moreover, each of 

those three things applied to each state that would become 

subject to the SIP call. Accordingly, the FIP proposal did, in 

fact, “give states and the regulated community a meaningful 

opportunity to comment on a proposed FIP that has been 

specifically developed to address the individual needs and 

circumstances of such a state,” as the commenter argues the FIP 

proposal needed to do. 

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 Several commenters raised an additional objection, which 

was that in their view, EPA failed to comply with the 

requirements of CAA section 307(d)(3) that (i) the proposed FIP 

include a summary of “the factual data on which the proposed 

rule is based” and “the major legal interpretations and policy 

considerations underlying the proposed rule”; and (ii) “[a]ll 

data, information, and documents ... on which the proposed rule 

relies shall be included in the docket on the date of 

publication of the proposed rule.” (Emphasis added by one of 

these commenters.) One of these commenters explained that (a) 

in the SIP call proposal, EPA had made a detailed request that 

states provide information as to whether their state law 

authorized the application of PSD to GHG-emitting sources; (b) 

this detailed request demonstrated that the proposal did not 

establish the legal basis for the SIP call; and (c) as a result, 

the FIP proposal did not include “information that is essential 

to determining whether a FIP for a given state is even 

appropriate and justified.” (Emphasis in original.) This 

commenter added – 

Only after EPA has received such information, and then 

taken the necessary time to evaluate the information 

and to make judgments as to whether or not a given 

state has authority under its SIP and other elements 

of state law to regulate GHGs under the PSD program – 

i.e., the steps EPA would have to take under CAA 

section 307(d)(3) to provide to the public a 

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meaningful “summary” of “the factual data on which the 

proposed rule is based” and “the major legal 

interpretations and policy considerations underlying 

the proposed rule” – may EPA propose a FIP for any 

state that has been determined to lack that authority. 

(Emphasis in original.) 

 We disagree with this comment. The preamble for the FIP 

proposal included the CAA section 307(d)(3)-required “summary” 

of the factual basis and legal interpretations. To reiterate, 

EPA identified the states for which EPA was proposing the FIP, 

75 FR at 53886 and table II-1 and 53889/1, and added that EPA 

would subject other states to the FIP if they, too, became 

subject to the SIP call, id. 53886 and table II-2 and 53889/2; 

described the timing for the FIP, id. 53889/2-3; described the 

substance of the FIP, id. 53889/3 – 53890/1; and explained that 

CAA section 110(c)(1) provided the legal basis, id. 53889/2. 

The purpose of the CAA section 307(d)(3) requirements is to 

provide the public with adequate notice, and these statements 

did so by making clear the circumstances under which EPA was 

proposing to promulgate a FIP and the timing and substance of 

the proposed FIP. 

 It is true that for any state, whether and when EPA would 

finalize the FIP for any state depended on other factors, 

including whether EPA would finalize the SIP call for that 

state, what deadline EPA would establish, and whether the state 

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would submit its required corrective SIP revision by that 

deadline. But the FIP proposal put the public on notice, with 

sufficient specificity, as to EPA’s plan. In any event, any FIP 

is necessarily dependent on other factors, including state 

actions. That is, under any circumstances, whether EPA 

finalizes any proposed FIP depends on whether (i) if the 

proposed FIP is based on the failure of a state to make a 

required submittal, the state makes the required submittal; or 

(ii) if the proposed FIP is based on EPA’s disapproval of a SIP 

revision, whether the state submits a revised SIP revision that 

EPA then approves. 

 Most broadly, commenters’ approach – which is that EPA 

cannot propose a FIP in concert with a SIP call, but instead 

must proceed in seriatim by completing the SIP call first and 

then proposing the FIP – would result in lengthy delays in the 

establishment of a permitting authority to process GHG-emitting 

sources’ PSD permit applications. As a result, commenters’ 

approach could well cause delays in these sources’ ability to 

undertake construction and modification projects. 

 We include related comments and responses in the Response 

to Comments document.15

 

15 The Response to Comments document for the FIP can be found in 

the docket for this rulemaking. 

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C. Substance of GHG PSD FIP

 In the FIP proposal, we stated: 

The proposed FIP constitutes the EPA regulations 

found in 40 CFR 52.21, including the PSD applicability 

provisions, with a limitation to assure that, strictly 

for purposes of this rulemaking, the FIP applies only 

to GHGs. Under the PSD applicability provisions in 40 

CFR 52.21(b)(50), the PSD program applies to sources 

that emit the requisite amounts of any "regulated NSR 

pollutant[s]," including any air pollutant "subject to 

regulation." However, in states for which EPA would 

promulgate a FIP to apply PSD to GHG-emitting 

pollutants, the approved SIP already applies PSD to 

other air pollutants. To appropriately limit the 

scope of the FIP, EPA proposes in this action to amend 

40 CFR 52.21(b)(50) to limit the applicability 

provision to GHGs. 

We propose this FIP because it would, to the 

greatest extent possible, mirror EPA regulations (as 

well as those of most of the states). In addition, 

this FIP would readily incorporate the phase-in 

approach for PSD applicability to GHG sources that EPA 

has developed in the Tailoring Rule and expects to 

develop further through additional rulemaking. As 

explained in the Tailoring Rule, incorporating this 

phase-in approach—including Steps 1 and 2 of the 

phase-in as promulgated in the Tailoring Rule—can be 

most readily accomplished through interpretation of 

the terms in the definition "regulated NSR pollutant," 

including the term "subject to regulation." 

In accordance with the Tailoring Rule, ... the 

FIP would apply in Step 1 of the phase-in approach 

only to "anyway sources" (that is, sources undertaking 

construction or modification projects that are 

required to apply for PSD permits anyway due to their 

non-GHG emissions and that emit GHGs in the amount of 

at least 75,000 tpy on a CO2e basis) and would apply in 

Step 2 of the phase-in approach to both "anyway 

sources" and sources that meet the 100,000/75,000-tpy 

threshold (that is, (i) sources that newly construct 

and would not be subject to PSD on account of their 
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non-GHG emissions, but that emit GHGs in the amount of 

at least 100,000 tpy CO2e, and (ii) existing sources 

that emit GHGs in the amount of at least 100,000 tpy 

CO2e, that undertake modifications that would not 

trigger PSD on the basis of their non-GHG emissions, 

but that increase GHGs by at least 75,000 tpy CO2e). 

Under the FIP, with respect to permits for 

"anyway sources," EPA will be responsible for acting 

on permit applications for only the GHG portion of the 

permit, and the state will retain responsibility for 

the rest of the permit. Likewise, with respect to 

permits for sources that meet the 100,000/75,000-tpy 

threshold, our preferred approach—for reasons of 

consistency—is that EPA will be responsible for acting 

on permit applications for only the GHG portion of the 

permit, that the state permitting authorities will be 

responsible for the non-GHG portion of the permit, and 

EPA will coordinate with the state permitting 

authority as needed in order to fully cover any nonGHG emissions that, for example, are subject to BACT 

because they exceed the significance levels. We 

recognize that questions may arise as to whether the 

state permitting authorities have authority to permit 

non-GHG emissions; as a result, we solicit comment on 

whether EPA should also be the permitting authority 

for the non-GHG portion of the permit for these latter 

sources. 

We propose that the FIP consist of the regulatory 

provisions included in 40 CFR 52.21, except that the 

applicability provision would include a limitation so 

that it applies for purposes of this rulemaking only 

to GHGs. 

75 FR 53889/3 to 53,890/1 

 We are finalizing the FIP as we described it in the 

proposal, for the same reasons that we indicated in the 

proposal, all as quoted earlier in this preamble. 

 State, industry, and environmental commenters questioned 

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how having EPA issue the GHG portions of a permit while allowing 

states under a FIP to continue to be responsible for issuing the 

non-GHG portions of a PSD permit will work in practice. 

Commenters raised concerns about the potential for a source to 

be “faced with conflicting requirements and the need to mediate 

among permit engineers making BACT decisions.” 

We appreciate the commenters’ concern. We well recognize 

that dividing permitting responsibilities between two 

authorities – EPA for GHGs and the state for all other 

pollutants – will require close coordination between the two 

authorities to avoid duplication, conflicting determinations, 

and delays. We note that this situation is not without 

precedent. In many instances, EPA has been the PSD permitting 

authority but the state has accepted a delegation for parts of 

the PSD program, so that a source has had to go to both the 

state and EPA for its permit. In addition, all nonattainment 

areas in the nation are in attainment or are unclassifiable for 

at least one pollutant, so that every nonattainment area is also 

a PSD area. In some of these areas, the state is the permitting 

authority for nonattainment new source review (NSR) and EPA is 

the permitting authority for PSD. As a result, there are 

instances in which a new or modifying source in such an area has 
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needed a nonattainment NSR permit from the state and a PSD 

permit from EPA. 

EPA is working expeditiously to develop recommended 

approaches for EPA regions and affected states to use in 

addressing the shared responsibility of issuing PSD permits for 

GHG-emitting sources. In addition, as discussed below, we 

intend for the GHG PSD FIP to remain in place only as long as 

necessary for states’ SIPs to be approved. Moreover, in this 

interim period, we intend to delegate permitting responsibility 

to those states that are able to implement it and that request 

it. States that request and receive a delegation will be 

responsible for issuing both the GHG part and the non-GHG part 

of the permit, and that will moot commenters’ concerns about 

split permitting. EPA’s most recent information is that of the 

seven states for which EPA is promulgating a FIP, four states 

have indicated to EPA that they intend to seek a delegation 

(Arizona, Idaho, Kansas, and Oregon) and a fifth has indicated 

that it is considering seeking a delegation (Arkansas).16

In addition, beginning on July 1, 2011, those states 

without authority to regulate GHG may not be able to issue PSD 

permits for non-GHG pollutants to sources that are major only 

because of their GHG emissions. This is because under the

 

16 McCarthy Declaration, pp. 136-38, Table II. 

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state’s approved SIP, these sources are not major sources. In 

this circumstance, EPA will also be the PSD permitting authority 

for the non-GHG pollutants, but, as discussed in detail earlier 

in this preamble, EPA intends to work closely with each state to 

develop mutually acceptable approaches – including delegation of 

this authority where possible – to maximize the opportunity for 

the state to assume as much of the permitting responsibilities 

as possible.

Finally, we are providing regulatory language to address 

Oregon. Oregon’s EPA-approved PSD SIP differs from the federal 

program with respect to which sources are subject to PSD. EPA 

is promulgating a FIP for Oregon that is consistent with the 

intent of the Tailoring Rule and that accommodates the 

difference in the Oregon program. That is, as of January 2, 

2011, sources in Oregon that are currently required to get PSD 

permits under the approved SIP will be subject to review under 

the FIP for greenhouse gases if they exceed the Tailoring Rule 

thresholds. As of July 1, 2011, the determination of which

sources will be subject to PSD review for greenhouse gases under 

the FIP will be consistent with how applicability is determined 

under the current Oregon SIP for other regulated NSR pollutants.

D. Period for GHG PSD FIP to Remain in Place
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 In the FIP proposal, we stated our intention to leave any 

promulgated FIP in place for as short a period as possible, and 

to process any corrective SIP revision submitted by the state to 

fulfill the requirements of the SIP call as expeditiously as 

possible. Specifically, we stated: 

 After we have promulgated a FIP, it must remain 

in place until the state submits a SIP revision and we 

approve that SIP revision. CAA section 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. Upon request of the state, we 

will parallel-process the SIP submittal. That is, if 

the state submits to us the draft SIP submittal for 

which the state intends to hold a hearing, we will 

propose the draft SIP submittal for approval and open 

a comment period during the same time as the state 

hearing. If the SIP submittal that the state 

ultimately submits to us is substantially similar to 

the draft SIP submittal, we will proceed to take final 

action without a further proposal or comment period. 

If we approve such a SIP revision, we will at the same 

time rescind the FIP. 

75 FR 53889/2-3. 

We continue to have these same intentions. Thus, we 

reaffirm our intention to leave the GHG PSD FIP in place only as 

long as is necessary for the state to submit and for EPA to 

approve a SIP revision that includes PSD permitting for GHGemitting sources. As discussed in more detail later in this 

preamble, EPA continues to believe that the states should remain 

the primary permitting authority. 

E. Primacy of SIP Process
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In the FIP proposal we stated, 

This proposal [to promulgate a FIP] is secondary 

to our overarching goal, which is to assure that in 

every instance, it will be the state that will be that 

permitting authority. EPA continues to recognize that 

the states are best suited to the task of permitting 

because they and their sources have experience working 

together in the state PSD program to process permit 

applications. EPA seeks to remain solely in its 

primary role of providing guidance and acting as a 

resource for the states as they make the various 

required permitting decisions for GHG emissions. 

Accordingly, beginning immediately we intend to 

work closely with the states—as we have already begun 

to do since earlier in the year—to help them promptly 

develop and submit to us their corrective SIP 

revisions that extend their PSD program to GHGemitting sources. Moreover, we intend to promptly act 

on their SIP submittals. Again, EPA's goal is to have 

each and every affected state have in place the 

necessary permitting authorities by the time 

businesses seeking construction permits need to have 

their applications processed and the permits issued—

and to achieve that outcome by means of engaging with 

the states directly through a concerted process of 

consultation and support. 

EPA is taking up the additional task of proposing 

this FIP and the companion SIP Call action only 

because the Agency believes it is compelled to do so 

by the need to assure businesses, to the maximum 

extent possible and as promptly as possible, that a 

permitting authority is available to process PSD 

permit applications for GHG-emitting sources once they 

become subject to PSD requirements on January 2, 2011. 

In order to provide that assurance, we are 

obligated to recognize, as both states and the 

regulated community already do, that there may be 

circumstances in which states are simply unable to 

develop and submit those SIP revisions by January 2, 

2011, or for some period of time beyond that date. As 

a result, absent further action by EPA, those states' 
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affected sources confront the risk that they may have 

to put on hold their plans to construct or modify, a 

risk that may have adverse consequences for the 

economy. 

Given these exigent circumstances, EPA proposes 

this plan, within the limits of our power, with the 

intent to make a back-up permitting authority 

available—and to send a signal of assurance 

expeditiously in order to reduce uncertainty and thus 

facilitate businesses' planning. Within the design of 

the CAA, it is EPA that must fill that role of back-up 

permitting authority. This FIP and the companion SIP 

Call action fulfill the CAA requirements to establish 

EPA in that role. 

At the same time, we propose these actions with 

the intent that states retain as much discretion as 

possible in the hand of the states. In the SIP Call 

rulemaking, EPA proposes that states may choose the 

deadline they consider reasonable for submission of 

their corrective SIP revision. If, under CAA 

requirements, we are compelled to promulgate a FIP, we 

invite the affected state to accept a delegation of 

authority to implement that FIP, so that it will still 

be the state that processes the permit applications, 

albeit operating under federal law. In addition, if 

we are compelled to issue a FIP, we intend to continue 

to work closely with the state to assist in developing 

and submitting for approval its corrective SIP 

revision, so as to minimize the amount of time that 

the FIP must remain in place. 

75 FR at 53890/1-2. 

 In this rulemaking, we continue to have the same intentions 

and for the same reasons. Thus, we continue to believe that 

this action is necessary to ensure that sources in states with 

inadequate SIPs can obtain the necessary PSD permits for their 

GHG emissions. We have worked closely with states to establish 
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reasonable deadlines for submitting revised SIPs and are 

finalizing this FIP based on deadlines agreed to by the affected 

states. We will continue to work with states, as we have done 

throughout the rulemaking process, to assist in development and 

expedite review of revised SIPs. In the meantime, however, this 

FIP is necessary for the seven states identified here in order 

to provide a permitting authority until an adequate SIP is 

submitted and approved. 

IV. 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 

submitted this action to the Office of Management and Budget 

(OMB) for review under EO 12866 and any changes made in response 

to OMB recommendations have been documented in the docket for 

this action. 

B. Paperwork Reduction Act

This action does not impose any new information collection 

burden. 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 parts 70 and 71) 

under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
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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. 

For 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 operated and is not dominant in its 

field. 
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Although this rule would 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 rule on small entities, 

I certify that this action will not have a significant economic 

impact on a substantial number of small entities. This final 

rule will not impose any requirements on small entities. 

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the 

provisions of Title II of the Unfunded Mandates Reform Act of 

1995 (UMRA, 2 U.S.C. 1531-1538) for state, local or tribal 

governments or the private section. The action imposes no 

enforceable duty on any state, local or tribal governments or 

the private sector. This action merely prescribes EPA's action 

for states that have not met their existing obligation for PSD 

SIP submittal. Thus, this rule is not subject to the 

requirements of sections 202 or 205 of UMRA. 

This action is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 

requirements that might significantly or uniquely affect small 

governments. This action merely prescribes EPA's action for 

states that have not met their existing obligation for PSD SIP 

submittal. 
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E. Executive Order 13132 - Federalism

This action does not have federalism implications. It will 

not have substantial direct effects on the states, on the 

relationship between the national government and the states, or 

on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

13132. This action merely prescribes EPA's action for states 

that have not met their existing obligation for GHG PSD SIP 

submittal. Thus, Executive Order 13132 does not apply to this 

action. 

In the spirit of Executive Order 13132, and consistent with 

EPA policy to promote communications between EPA and state and 

local governments, EPA specifically solicited comment on the 

proposal for this action 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 67249, November 9, 2000). This 

action does not impose a FIP in any tribal area. Thus, 

Executive Order 13175 does not apply to this action. 

G. Executive Order 13045 - Protection of Children from 

Environmental Health Risks and Safety Risks

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as 

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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 Supply, Distribution, or Use

This action is not a "significant energy action" as defined 

in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because 

it is not likely to have a significant adverse effect on the 

supply, distribution, or use of energy. This action merely 

prescribes EPA's action for states that have not met 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 technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 
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consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards. 

This rulemaking does not involve technical standards. 

Therefore, EPA did not consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898 - Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order 12898 (59 FR 7629, 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, policies, and 

activities on minority populations and low-income populations in 

the U.S. 

EPA has determined that this final rule will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it does not affect the level of protection provided to 

human health or the environment. This rule merely prescribes 
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EPA's action for states that have not met their existing 

obligation for PSD SIP submittal. 

K. Determination under Section 307(d)

Pursuant to section 307(d)(1)(B) of the CAA, this action is 

subject to the provisions of section 307(d). Section 

307(d)(1)(B) provides that the provisions of section 307(d) 

apply to "the promulgation or revision of an implementation plan 

by the Administrator under section 110(c) of this Act." 

L. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory Enforcement Fairness Act 

of 1996, generally provides that before a rule may take effect, 

the agency promulgating the rule must submit a rule report, 

which includes a copy of the rule, to each House of the Congress 

and to the Comptroller General of the United States. EPA will 

submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action does not 

constitute a "major rule" as defined by 5 U.S.C. 804(2). 

Therefore, this action will be effective [INSERT DATE OF 

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PUBLICATION IN THE FEDERAL REGISTER].

V. Judicial Review 

 Section 307(b)(1) of the CAA specifies which Federal 

Courts of Appeal have jurisdiction to hear petitions for review 

of which final actions by EPA. This section provides, in part, 

that petitions for review must be filed in the Court of Appeals 

for the District of Columbia Circuit: (i) when the agency 

action consists of “nationally applicable regulations 

promulgated, or final actions taken, by the Administrator,” or 

(ii) when such action is locally or regionally applicable, if 

“such action is based on a determination of nationwide scope or 

effect and if in taking such action the Administrator finds and 

publishes that such action is based on such a determination.”

This rule is nationally applicable under CAA section 

307(b)(1). The circumstances that have led to this rulemaking 

are national in scope and are substantially the same for each 

affected state. They include EPA’s promulgation of nationally 

applicable GHG requirements that, in conjunction with the 

operation of the CAA PSD provisions, have resulted in GHGemitting sources becoming subject to PSD; as well as EPA’s 

finding of substantial SIP inadequacy, imposition of a SIP call, 

and establishment of a deadline for SIP submittal. Moreover, in 

this rule, EPA is applying uniform principles for promulgating 

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the FIP for each of the affected states, concerning, e.g., 

timing (that is, that EPA is promulgating the FIP for each 

affected state immediately) and scope (that is, that EPA is 

applying the FIP for GHG-emitting sources). The FIP for each 

affected state has substantially the same, if not identical, 

terms. This rulemaking action is supported by a single 

administrative record, and does not involve factual questions 

unique to the different affected states. In addition, this rule 

applies to multiple States across the country, and in several 

judicial circuits.

For similar reasons, this rule is based on determinations

of nationwide scope or effect. For each of the seven affected 

States, EPA is determining that it is appropriate to promulgate 

the FIP immediately and to apply it to GHG-emitting sources, but 

not other sources. These determinations are the same for each 

of the states. The other provisions of the FIP are 

substantially the same, if not identical, for each affected 

state. Moreover, EPA is making these determinations and 

promulgating this action within the context of nationwide 

rulemakings and interpretation of the applicable CAA provisions, 

as noted above.

Thus, under section 307(b)(1) of the Act, judicial review 

of this final action is available by filing of a petition for 
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review in the U.S. Court of Appeals for the District of Columbia 

Circuit by [INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL 

REGISTER]. Any such judicial review is limited to only those 

objections that were raised with reasonable specificity in 

timely comments. Under section 307(b)(2) of the Act, the 

requirements of this final action may not be challenged later in 

civil or criminal proceedings brought by us to enforce these 

requirements.

VI. Statutory Authority 

The statutory authority for this action is provided by 

sections 110, 165, 301, and 307(d)(1)(B) of the CAA as amended 

(42 U.S.C. 7410, 7475, 7601, and 7407(d)(1)(B)). This action is 

subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).
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Page 42 of 45 – Action to Ensure Authority to Issue Permits 

under the Prevention of Significant Deterioration Program to 

Sources of Greenhouse Gas Emissions: Federal Implementation 

Plan 

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, Carbon dioxide 

equivalents, Carbon monoxide, Environmental protection, 

Greenhouse gases, Hydrofluorocarbons, Incorporation by 

reference, Intergovernmental relations, Lead, Methane, Nitrogen 

dioxide, Nitrous oxide, Ozone, Particulate matter, 

Perfluorocarbons, Reporting and recordkeeping requirements, 

Sulfur hexafluoride, Sulfur oxides, Volatile organic compounds. 

________________________ 

Dated: 

_________________________ 

Lisa P. Jackson, 

Administrator. 
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For the reasons set out in the preamble, title 40, chapter I of 

the Code of Federal Regulations is amended as follows: 

PART 52 - [Amended]

1. The authority citation for part 52 continues to read as 

follows: 

 Authority: 42 U.S.C. 7401 et seq. 

2. Section 52.1987 is amended to read as follows:

52.1987 Significant deterioration of air quality.

* * * * *

(d) The requirements of sections 160 through 165 of the Clean 

Air Act are not met for greenhouse gases since the plan does not 

include approvable procedures for permitting major sources of 

greenhouse gas emissions. Therefore, the Oregon Department of 

Environmental Quality rules identified in paragraph (a) of this 

section, and the Lane Regional Air Pollution Authority rules 

identified in paragraph (b) of this section, are hereby 

incorporated by reference with the following changes and made 

part of the applicable plan for the State of Oregon:

(1) The definition of "Regulated NSR pollutant" at 52.21(b)(50) 

and the definition of "Subject to regulation" at 52.21(b)(49) 

are incorporated by reference, replacing the definition of 

"Regulated air pollutant" at OAR 340-200-0020(97), for the 

purpose of greenhouse gases only;

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(2) The provisions of 52.21(q) Public participation are 

incorporated by reference for the purposes of EPA permits issued 

pursuant to this paragraph; and

(3) All references to "Director" in the Oregon Department of 

Environmental Quality rules and the Lane Regional Air Pollution 

Authority rules incorporated in this paragraph shall mean the 

EPA Administrator for the purposes of EPA permits issued 

pursuant to this paragraph. 

3. Section 52.37 is added to read as follows: 

 §52.37. What are the requirements of the Federal 

Implementation Plans (FIPs) to issue permits under the 

Prevention of Significant Deterioration requirements to sources 

that emit greenhouse gases? 

(a) The requirements of sections 160 through 165 of the Clean 

Air Act are not met to the extent the plan, as approved, of the 

states listed in paragraph (b) of this section does not apply 

with respect to emissions of the pollutant GHGs from certain 

stationary sources. Therefore, the provisions of §52.21 except 

paragraph (a)(1) are hereby made a part of the plan for each 

state listed in paragraph (b) of this section for: 

(1) beginning January 2, 2011, the pollutant GHGs from 

stationary sources described in §52.21(b)(49)(iv), and 
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(2) beginning July 1, 2011, in addition to the pollutant GHGs 

from sources described under paragraph (a)(1) of this section, 

 stationary sources described in §52.21(b)(49)(v). 

(b) Paragraph (a) of this section applies to: 

(1) Arizona, Pinal County; Rest of State (Excludes Maricopa 

County, Pima County, and Indian Country); 

(2) Arkansas; 

(3) Florida; 

(4) Idaho; 

(5) Kansas; 

(6) Wyoming. 

(c) For purposes of this section, the "pollutant GHGs" refers 

to the pollutant GHGs, as described in §52.21(b)(49)(i). 

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the pollutant GHGs from

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[Alternative 2 for the rest of this 

paragraph (a)(2) of this section] ¶

stationary sources described in 

§52.21(b)(49)(v)

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(7)