# Exhibit 1 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 1

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT



### SOUTHEASTERN LEGAL FOUNDATION,) Case No. 10-1131 FOUNDATION, ET AL., Petitioners,

v. 

### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. ) 

### ) (Consolidated with Nos. ) 1132, 1145, 1147-1148, ) 1199-1203, 1205-1213, ) 1215-1216,1218-1222; ) Pending 10-1073, 1083, 1099, ) 1109-1110,1114-1115,1118- ) 1120, 1122-1129) ) ) ) )



### DECLARAnON OF LARRY GREENE, IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE 

### I, Larry Greene, declare as follows: 1. I am the Air Pollution Control Officer (APCO)! Executive Director for the Sacramento Metropolitan Air Quality Management District (SMAQMD or District), and have held that position since July 26, 2004. Prior to that, I was the APCO for the Yolo-Solano Air Quality Management District and held that position for 8 years. 

### In both capacities I have been responsible for overseeing the district's permitting program for stationary sources, including implementing the district's New Source Review ("NSR") permitting, credit tracking, and federal and state compliance programs. 2. I have a Bachelor of Science degree in Science Education from North Carolina State University, a Masters degree in Logistics Management from Florida Institute ofTechnology and a Masters degree in Education from Boston University.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 2

### 3. In preparation for implementing EPA's Tailoring Rule for Greenhouse Gases (GHG), I have evaluated SMAQMD's ability to carry out the permit actions required by the Tailoring Rule, and have concluded that: (i) existing SMAQMD staffhave the ability to implement the rule, and (ii) adequate staffing is currently available to implement the rule. 4. Under the Tailoring Rule, air regulatory agencies must begin incorporating GHG requirements into two existing programs: Prevention of Significant Deterioration (PSD) permits, which authorize construction or modification of facilities, and Title V permits, which regulate operation offacilities. 5. Beginning January 2, 2011, the Tailoring Rule will have the following impacts on the District program:
a. When issuing or modifying PSD permits, SMAQMD will have to require the use ofBest Available Control Technology (BACT) for sources that: (i) already trigger PSD requirements for non-Gl-IG pollutants, and (ii) increase GHG emissions by 75,000 tpy C02e. The District currently issues one PSD permit every 4 to 5 years. Even assuming each project also meets the 75,000 tpy C02e trigger, implementing this aspect ofthe Tailoring Rule will impose minimal additional burdens on existing agency resources. b. When issuing or modifying a Title V permit, the District will likewise have to incorporate the GHG BACT requirements. There are currently no additional GHG requirements that must be included in the Title V permit under the Tailoring Rule, and so implementation ofthis phase ofthe Tailoring Rule will impose no additional burdens on the District. 6. Beginning July 1,2011, the Tailoring Rule will have the following additional impacts on the District program:
a. SMAQMD will have to require PSD permits

-- regardless of whether

or not the facility already requires a PSD permit for other pollutants

-- if: (i) the facility is a new major source and it has the potential to emit over 100 tpy of six
20f3 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 3

### select GHGs, and over 100,000 tpy C02e, or (ii) an existing GHG major source facility is modifying operations and the modified facility will have the potential to increase emissions by over 75,000 tpy C02e. b. SMAQMD will have to require Title V permits for GHG sources that have the potential to emit over 100 tpy of six select GHGs, and over 100,000 tpy C02e. 7. After reviewing past permitting actions and the range ofsources within the District, I estimate that the Tailoring Rule requirements going into effect July 1, 20 II 

### will initially result in 3 - 6 new Title V sources. The new rule will also impact the PSD program, but we expect that there will still be no more than I PSD action per year. There are currently no applicable GHGs requirements for existing Title V sources, thus we do not anticipate having to reopen existing Title V permits and expect minimal additional work during permit renewals. The District has adequate resources to absorb the workload, and the additional requirements will pose no burden on the District. 8. Even though EPA has not yet issued guidance for determining GHG BACT,

our staffhas sufficient knowledge and expertise to specify GHG BACT on a caseby-case basis just as we have done for criteria pollutants for many years. GHG BACT is likely to focus largely on energy efficiency, and our engineers have sufficient expertise to make appropriate judgments regarding these issues. I declare under penalty ofperjury under the laws ofthe United States that the foregoing is true and correct. Executed on October 21, 20 10, at Sacramento, California.

# ~~ Sacramento Metropolitan Air Quality Management District

3 

# on Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 4

### 1 2 

### 3 

### 4 5 

### 6 7 8 PROOF OF SERVICE
I, Virginia Muller, declare I am a citizen ofthe United States, over the age of 18 years, and not a party to the above-entitled action. I am employed in the Sacramento Metropolitan Air Quality Management District, and my business address is 777 12th Street, Third Floor, Sacramento, California 95814. On October 25, 2010, I served a copy ofthe following document: I) Declaration ofLarry Greene, in Opposition to Motions for a Stay ofEPA's Greenhouse Gas Tailoring Rule (in the matter ofSoutheastern Legal Foundation, et al., v. US EPA, DC Cir, Case No. 1131.)

on interested parties in this action by: 9 lL 

### Mail in accordance with CCP § 1013(a), by enclosing a true copy in a sealed envelope in a designated area for outgoing mail, addressed as set forth below. I am readily familiar 10 with the business practices ofthe Sacramento Metropolitan Air Quality Management District office for collection and processing of correspondence for mailing with the 

### 11 United States Postal Service, and correspondence so collected and processed is deposited with the United States Postal Service on the same date in the ordinary course ofbusiness.

Susan Durbin, Deputy Attorney General 1300 I Street P.O. Box 944255 Sacramento, CA 94244-2550 Morgan A. Costello, Asst Attorney General NYS Office of the Attorney General Environmental Protection Bureau The Capitol Albany, NY 12224-0341

I declare under penalty ofperjury that the forego· g is true and correct. Executed on October 25,2010, at Sacramento, California. 12 

### 13 

### 14 15 

### 16 17 18 19 20 21 

### 22 23 24 25 

### 26 27 28
-1- Proof of Service 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 5

# Exhibit 2 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 6

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT



### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Case No. 10-1131 (Consolidated with Nos. 1132, 1145, 1147-1148, 1199-1203,1205-1213, 1215-1216, 1218-1222; Pending 10-1073, 1083, 1099, 1109-1110,1114-1115,1118- 1120,1122-1129) Petitioners,

Respondent. v. 

### SOUTHEASTERN LEGAL FOUNDATION,) FOUNDATION, ET AL., ) ) ) ) ) ) ) ) ) ) ) 

### -------------) DECLARATION OF KATHRINE PITTARD, IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE 

### I, Kathrine Pittard, declare as follows: 1. I am the District Counsel for the Sacramento Metropolitan Air Quality Management District (SMAQMD or District) and have held that position for over 10 years. I am the sole legal counsel for the District, and it is my responsibility to
oversee the District's efforts to comply with state and federal law, including the Tailoring Rule recently adopted by the U.S. Environmental Protection Agency (EPA). (75 Fed. Reg. 75 FR 31514 (June 3, 2010).) Prior to coming to the District, I worked as an associate for 10 years with two private law firms, Miller, Karp and Grattan, specializing in environmental and energy law, and Remy, Thomas and Moose, specializing in development and environmental law.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 7

### 2. SMAQMD, like all local air districts in California, has the primary responsibility for regulating stationary sources of air pollution operating within its jurisdiction. (Health & 

### Saf. Code, § 39002.) 3. SMAQMD is also the local agency responsible for the development, implementation, monitoring and enforcement of air pollution control strategies within the County of Sacramento. (Health & 

### Saf. Code, §§ 40960, 40961.) This includes adopting and enforcing rules and regulations sufficient to achieve and maintain the National Ambient Air Quality Standards (NAAQS) and various other provisions ofthe federal Clean Air Act (CAA) 

### (42 U.S.C. section 7400, et seq). As part ofthe process, SMAQMD prepares, adopts, and submits to the state Air Resources Board its portion ofthe State Implementation Plan (SIP), setting out the strategies, plans, and control measures that the District will employ to comply with all standards set out in the Clean Air Act. 4. Under the CAA, 

### certain stationary sources of air pollution are required to get Prevention of Significant Deterioration (PSD) permits and comply with Best Available Control Technology (BACT) requirements before constructing or modifYing their facilities. 5. EPA has recently adopted regulations that apply the PSD program to stationary sources that emit greenhouse gases (GHGs). (75 Fed. Reg. 75 FR 31514 (June 3, 2010).) It 

### has also directed states and local air districts to include GHG control measures for all PSD areas in the state SIP. 6. As part ofthat process, the Clean Air Act requires states (and through them, local air districts) to demonstrate in their SIPs that they have adequate legal authority to adopt and enforce regulations to carry out the regulatory strategies and provisions in the SIP, including the authority to regulate GHGs. (42 U.S.C. § 7410(a)(2)(E).)

2 

# on

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 8

### 7. EPA has preliminarily named SMAQMD as the only California district lacking legal authority to enforce PSD permitting for GHGs. (75 Fed. Reg. 53899) EPA also stated that any state or local agency that lacks such legal authority may either: (i) provide an interpretation, issued by its general counsel, that its regulations provide adequate authority to apply PSD to appropriate sources of GHG emissions, or (2) adopt new laws or regulations that provide such authority. (75 Fed. Reg. 53901 (Sept. 2,2010).) 8. SMAQMD is pursing both options. As District Counsel (functionally equivalent to EPA's term "general counsel"), 1 prepared an assessment ofthe District's GHG permit authority, which was submitted to EPA on September 30, 2010, and which concluded that the District regulations, together with state and federal law, provide adequate authority for the District to regulate GHG under the PSD program. In sum, the District permit program requires issuance ofpermits that regulate all state and federal pollutants, and EPA's recent actions classifying GHGs as pollutants bring those pollutants within the ambit ofthe District program. 9. At the same time, the District notified EPA that it plans to amend its regulations to allow it to clarify its authority to require, review, grant and enforce permits for stationary sources based on their GHG emissions, equivalent to the regulations the District now administers and enforces for other air pollutants. The District also stated that it would agree to a January 31, 2011 deadline for approval ofthe revised SIP provisions. I declare, under penalty ofperjury under the laws ofthe State of California, that the foregoing is true and correct. Executed on October 21,2010, at Sacramento, California. 

# ------1-,**C\,~ ?=dt~**  Kathrine Pittard, District Counsel Sacramento Metropolitan Air Quality Management District



### 30f3 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 9

### 2 3 4 

### 5 

### 6 7 

### 8 PROOF OF SERVICE
I, Virginia Muller, declare I am a citizen of the United States, over the age of 18 years, and not a party to the above-entitled action. I am employed in the Sacramento Metropolitan Air Quality Management District, and my business address is 777 12th Street, Third Floor, Sacramento, California 95814. On October 25, 20 I 0, I served a copy of the following document: I) Declaration of Kathrine Pittard, in Opposition to Motions for a Stay ofEPA's Greenhouse Gas Tailoring Rule (in the matter ofSoutheastern Legal Foundation, et al., v. US 

### EPA, DC Cir, Case No. 1131.)

on interested parties in this action by: 9 lL Mail in accordance with CCP 

### § 1013(a), by enclosing a true copy in a sealed envelope in a designated area for outgoing mail, addressed as set forth below. I am readily familiar 10 with the business practices ofthe Sacramento Metropolitan Air Quality Management District office for collection and processing of correspondence for mailing with the 

### II United States Postal Service, and correspondence so collected and processed is deposited with the United States Postal Service on the same date in the ordinary course ofbusiness.

I declare under penalty of perjury that the foregoing is true and correct. Executed on October 25, 20 I 0, at Sacramento, California. 12 13 

### 14 

### IS 

### 16 17 18 19 20 21 

### 22 23 24 25 

### 26 27 28 Morgan A. Costello, Asst Attorney General NYS Office of the Attorney General Environmental Protection Bureau The Capitol Albany, NY 12224-0341 Susan Durbin, Deputy Attorney General 1300 I Street P.O. Box 944255 Sacramento, CA 94244-2550

-1- Proof of Service 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 10

# Exhibit 3 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 11

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Case No. 10-1131 (Consolidated with Nos. 1132, 1145, 1147-1148, 1199-1203,1205-1213, 1215-1216, 1218-1222; Pending 10-1073, 1083, 1099, 1109-1110, 1114-1115, 1118- 1120,1122-1129) Respondent. Petitioners,

v. 

### SOUTHEASTERN LEGAL FOUNDATION, ) FOUNDATION, ET AL., ) ) ) ) ) ) ) ) ) 

### ) ) ) 

### DECLARATION OF MOHSEN NAZEMI, P.E., IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE I, Mohsen Nazemi, declare as follows: 1. I am the Deputy Executive Officer ofEngineering and Compliance for the South Coast Air Quality Management District ("SCAQMD" or "District"), and have held such capacity since March 2008. Prior to that, I was the District's Assistant Deputy Executive Officer ofEngineering and Compliance since March 1999. In both capacities I have been responsible for overseeing the District's permitting program for stationary sources, including implementing the District's New Source Review ("NSR") for both non-attainment NSR and attainment Prevention of Significant Deterioration (PSD), as well as Title V permitting, credit tracking, and federal and state compliance programs. 2. I have a Master of Science (M.S.) degree in Chemical Engineering from the University of California at Los Angeles (UCLA) and a Bachelor of Science (B.S.) degree in Chemical Engineering from California State University at Long

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 12

### Beach. I have a Professional Engineering (P .E.) license in Chemical Engineering from the State of California. 3. In preparation for implementing EPA's Tailoring Rule for Greenhouse Gases, I have evaluated the SCAQMD's ability to carry out the permit actions required by the Tailoring Rule, and have concluded that SCAQMD staffwill be able to do so. We have approximately 110 engineering staffhandling the existing permitting workload. 4. In Step 1 ofthe Tailoring Rule regime, beginning January 2, 2011, permitting authorities will only be required to implement GHG BACT ("best available control technology") for sources that would otherwise be subject to PSD

as well as having a GHG increase of75,000 tpy C02e. We currently have at most 2 or 3 PSD actions every year, and even if all ofthese actions trigger GHG BACT, it would not be unduly burdensome to implement. In addition, because there are currently no GHG applicable requirements, there will not be any undue burden relative to incorporating GHG requirements into existing Title V permits, during Step 1. 5. In Step 2 ofthe Tailoring Rule, beginning July 1,2011, permitting authorities will be required to require Title V permits for GHG sources having the potential to emit 100,000 tpy C02e or greater. Accordingly to reports of GHG emissions filed with the California Air Resources Board, approximately 60 ofthe existing sources in the SCAQMD have actual emissions of 100,000 tpy C02e or
more. We expect sources that would be subject to Title V solely due to having a potential to emit exceeding 100,000 tpy but not actual emissions exceeding that level will take a permit limit to avoid Title V. Many ofthese approximately 60 facilities are already subject to Title V because the SCAQMD has a low threshold for "major source" ofNOx and VOC of 10 tons per year. This is because the South Coast Air Basin is designated as "extreme" nonattainment for ozone. Even if all approximately 60 potential GHG Title V sources were actually new to the·

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 13

### Title V program, we expect to be able to implement the program without increasing staff. Therefore, we expect to be able to implement Title V requirements for GHGs for the facilities that will be newly subject to Title V, based on the maximum number of sources likely to be subject to these requirements. 6. In Step 2 ofthe Tailoring Rule, beginning July 1, 2011, permitting authorities will be required to continue to implement Step 1 PSD permits for GHGs (primarily BACT and public notice requirements) in addition to implementing PSD for GHGs for new and modified sources which result in an increase of GHG emissions of 100,000 tpy C02e potential to emit, even ifthe modification would not otherwise be subject to PSD. Given the relatively small number of sources that actually emit 100,000 tpy of GHGs or more, and the fact that not every source will have a modification resulting in a 100,000 tpy (or 75,000 tpy if already a PSD source) increase in potential to emit GHGs every year, we predict that there will be

no more than one or at most two dozen such PSD pemit actions each year. We expect to be able to process all the predicted number of GHG PSD permit actions each year. 7. Even though EPA has not yet issued guidance for determining GHG BACT, our staffhas sufficient knowledge and expertise to specify GHG BACT on
a case-by-case basis just as we have done for criteria pollutants for many years. GHG BACT is likely to focus largely on energy efficiency, and our engineers have sufficient expertise to make appropriate judgments regarding these issues. I declare under penalty ofperjury under the laws ofthe United States that the foregoing is true and correct. Executed on October 22, 2010, at Diamond Bar, California. Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 14

# Exhibit 4 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 15AFFIDAVIT Anne Gobin, having been duly sworn, deposes and says as follows:

1. I am over eighteen years of age and understand the nature and obligations of an oath. 2. I am currently employed as Chief ofthe Bureau offAir Management in the Connecticut Department ofEnvironmental Protection ("DEP"). I have been employed by the
DEP for**ove~** 22 years. 3. I have primary responsibility at the Connecticut DEP to oversee the protection and improvement ofthe air quality for the citizens of Connecticut. This oversight includes maintaining, reviewing and updating the Regulations of Connecticut State Agencies related to air pollution. 4. On July 20, 2010, I sent a letter to H. Curtis Spalding, Regional Administrator for the U.S. Environmental Protection Agency (EPA), outlining Connecticut's response to the
Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR 31514; June 3, 2010) (the "Tailoring Rule"). (Letter to U.S. EPA dated July 20,2010 attached

as Exhibit A) 5. The July 20,2010 letter states DEP's commitment to building the infrastructure to incorporate and implement greenhouse gas permitting requirements into Connecticut's federally approved Title V and new source review prevention of significant deterioration (NSR PSD) permitting programs.

6. On September 29,2010, DEP Commissioner Arney Marrella sent a letter to H. Curtis Spalding providing the information requested by EPA in Action to Ensure Authority .to Issue Permits under the Prevention of Significant Deterioration Program to Sources of 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 16Greenhouse Gas Emissions: Finding a/Substantial Inadequacy and SIP Call (75 FR 53892; September 2, 2010) (the "SIP Call").
7. The September 29, 2010 letter to EPA requests an early SIP submittal deadline, as provided for by the SIP Call, ofMarch 1, 2011. 8. DEP has already begun the process to revise both the Title V and New Source Review permit program regulations to provide authority to issue permits for greenhouse gas emissions sources, consistent with the Tailoring Rule. We have drafted our initial proposal and have scheduled the public hearing for October 18, 2010. While the regulatory adoption process in Connecticut is lengthy, we intend to seek expedited processing for our proposal. 9. Under current and approved permitting staffing levels, the DEP Bureau of Air Mangement has adequate resources to process permits for stationary sources ofgreenhouse
gases in Connecticut, at the emissions thresholds established in the Tailoring Rule. 10. If DEP is unable to complete the regulatory adoption process and submit its NSR PSD regulations to EPA by March 1,2011, EPA will presumably impose a Federal Implementation Plan, allowing EPA to stand as the permitting authority to issue NSR PSD permits for greenhouse gas emissions. DEP would continue as permitting authority for the criteria pollutant portion ofthe NSR PSD program. Once DEP submits and EPA approves a corrective SIP revision, DEP would stand as the sole permitting authority for criteria pollutant and greenhouse gas emissions. 11. The EPA has found that that the current and projected concentrations ofthe six greenhouse gases - carbon dioxide (C02 ), methane (CH4), nitrous oxide (N20), hydro fluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)

- in the

2 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 17atmosphere threaten the public health and welfare of current and future generations. Consequently, ifnot mitigated, Connecticut's environment will be impacted.
12. The Tailoring Rule is a good step in the direction of limiting greenhouses gas emissions from stationary sources in Connecticut and throughout the country in an effort to protect the environment.

Anne Gobin

STATE OF CONNECTICUT) ) ss. COUNTY OF HARTFORD )
Subscribed and sworn to before me this 

### 1L{ day of October, 2010.

Commissioner ofthe Superior Court

### f1t£t~ 

# k.**~/u-I**

3 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 18

# STATE OF CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION

July 20, 2010 H. Curtis Spalding Regional Administrator U.S. Environmental Protection Agency 5 Post Office Square

- Suite 100 Boston, MA 02109-3912 

### Re: Notification under the Greenhouse Gas Tailoring Rule/or the Prevention of Significant Deterioration and Title VPermitting Programs
Dear Mr. Spalding:
Pursuant to 

### Prevention afSignificant Deterioration and Title V Greenhouse Gas Tailoring Rule [75 FR 31514; Jund, 2010; hereinafter, the Tailoring Rule], the Connecticut Department of Environmental Protection 

### (eIDE?) is notifying you of 

### its· intention to seek revisions to Connecticut's Title V and new source review (NSR) prevention of significant deterioration (PSD) pennit prognuns to include greenhouse gas (GHG) emissions in the Title V and NSR PSD pennit prognuns at the applicability thresholds defmed in the Tailoring Rule. eTDE? supports EPA's actions to regulate GHGs, and we have every intention of building the necessary infrastructure to incorporate 

### GHG pennitting into our EPA-approved criteria air pollution control pennitting program. We appreciate that EPA's intention 

### in developing the Tailoring Rule is to prevent states from being required to administer a pennit program, as of January 1,2011, for PSD and Title V for a vast nwnber of small sources, thereby imposing undue costs on small sources and ovefW'helming state pennitting programs. However, EPA's underlying supposition is not accurate with respect to Connecticut because neither our Title V nor our PSD**progr~** regulations allow for the automatic regulation of GHGs, and hence CTDEP will not be faced with an ovefW'helming pennitting burden as ofJanuary 1, 2011.
To help you understand Connecticut's situation, this letter provides background about Connecticut's regulatory adoption process, describes our intended implementation ofthe tailoring approach, provides an estimate of the time to complete the regulatory revisions necessary to issue PSD and Title V pennits for GHG sources and identifies a permit streamlining technique that we plan to implement to limit the creation of new Title V sources. To understand our approach to implementing the Tailoring Rule, you must 

### be aware ofthe Connecticut General Assembly's presumption against prospective incorporation of federal requirements. In Connecticut's regulatory adoption process, the final authority that pcrfonns a substantive review and approval ofa proposed regulatory amendment or adoption is the Regulation Review Committee, a standing bipartisan committee ofthe Connecticut General Assembly. The Regulation Review Committee has limited statutory authority, which is

(Prinled on Recycled Paper) 79ElmS1n:ct • Hal'lford,CT 06106·5127 www.cl.govldep An EqlUll Opportunity Employer 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 19H. Curtis Spalding Page 2 July 20, 2010
exercised on a volWltary 

### basis,l to approve the prospective incorporation by reference offederal regulations. A necessary condition for such an approval is that a federal statute requires that a Connecticut regulation at all times remain identical to that federal statute or regulation. Given that the required identicaJity condition is not present in this circumstance, 

### CroEP must seek approval and go through the Connecticut regulatory adoption process to effectuate a regulatory change to address the Tailoring Rule. 

### CTDEP intends to undertake a regulatory adoption process to revise both 

### Connecticut's Title V and NSR permit programs to incorporate provisions to require permits for GHG sources consistent with the Tailoring Rule. Connecticut's current Title V program regulation defines a Title V source as a source that emits a certain amount of a "regulated air pollutant," 2 but GHGs are not among the pollutants identified as "regulated air pollutants." CIDEP is thus notifying EPA, as recommended in the Tailoring Rule, that Connecticut's existing regulations do not convey authority to issue Title V permits to GHG sources. CTDEP intends to revise its Title V program regulation to add GHGs to the applicability and other provisions, as necessary to require and allow us to issue permits to sources ofGHG emissions consistent with the Tailoring Rule.
Connecticut's NSR PSD program similarly applies to "each criteria air pollutant"] and fails to authorize the issuance ofPSD permits for sources ofGHGs. CrDEP intends to revise the PSD thresholds consistent with the Tailoring Rule and to revise the NSR program to require the application ofbest available control technology reviews consistent with the Tailoring Rule.
Connecticut's regulatory adoption process is lengthy and involves reviews and approvals from other Connecticut agencies. The typical process takes 14

- 20 months to complete. We estimate that approval for revisions responsive to the Tailoring Rule could be achieved by late summer or early autumn of2011, based on current resources. It is our intent to make a reasonable effort to expedite these regulations; however, many ofthe approvals needed are not within our control. We look forward to EPA staffpartnering with us to assist in the regulation development process. In conference calls with EPA staff, we have become aware ofEPA's intention to propose a GHG PSD Federal Implementation Plan (FlP) in August 2010 with a final FlP following in December 2010. Presumably, such a FlP would assign responsibility for PSD permit issuance for GHGs emissions consistent with the Tailoring Rule to EPA for states like Connecticut that will not have sufficient PSD programs as ofJanuary 1,2011. I am surprised to leam that the anticipated FlP may reach beyond GHGs to include criteria pollutants. This possibility of the inclusion of criteria pollutants in the FIP would cause undue confusion and disruption in our current permitting processes and require a complete overhaul of OUI fonns and related activities and may require permit applicants to obtain duplicative permits frnm both EPA and CIDEP. Such a reconfiguration ofour programs is particularly ill-timed as we are partly through a Title V and NSR program review designed to reduce pennitting timeframes and improve process efficiencies. That efficiency review is mandated by the Connecticut General Assembly in Public Act 10-158. All Connecticut stakeholders would be deeply disappointed to see unnecessary and ill conceived obstacles to the anticipated program improvements and to the efficiencies already



# , , See section 4-170(b) ofthe Connecticut General Statutes, available at: http://www.cgaCl.govl2009/pub/chao054.htm#Sec4-170.htm As defined in section 22a·1 74-33(aX7) ofthe Regulations ofConnecticul State Agencies (RCSA). See RCSA section 22a-174-3a(kXl) and RCSA section 22a-174-1(30). 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 20H. Curtis Spalding Page 3 July 20, 2010 realized. Should EPA decide to proceed with a FIP, the FlP should focus solely on GHG pennilting. 

### We tmderstand that EPA is interested in streamlining GHG pennitting and in state experiences with such efficiencies. 4 

### To this end, please note CTDEP's intention to use a general permit to reduce the nwnber ofnew Title V sources that could potentially result from the additions to Connecticut's Title V regulated air pollutant thresholds in response to the Tailoring Rule. CIDEP 

### is including a cap on greenhouse gas emissions of 100,000 tons 

### C02e in 

### its renewal of 

### the General Pennil to Limit Potential to Emit from Major Stationary Sources of

### Air Pollution (GPLPE). The GPLPE is a practicably enforceable pennit designed for facilities with potential entissions ofa regulated air pollutant equal to or greater than the Title V thresholds defmed in 

### Connecticut's Title V program regulation, but with actual emissions below the thresholds. The current 

### GPLPE is scheduled to expire on February 24, 2011, so we intend to have the reissuance completed by winter of2010. 

### Should you or your staffhave any questions regarding this submittal, please contact mc at 860-424-3026.

. 

### Sincerely yours,

Anne R. Gobin, Chief 

### Bureau of

### Air Management

cc:



## • David Conroy, U.S. EPA, Region I

See the Tailoring Rule at 31586. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 21

# Exhibit 5 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 22UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

SOUTHEASTERN LEGAL FOUNDATION, FOUNDATION, ET AL., Petitioners,



### v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. ) Case No. 10-1131 ) ) (Consolidated with Nos. ) 1132,1145,1147-1148, ) 1199-1203, 1205-1213, ) 1215-1216,1218-1222; ) Pending 10-1073, 1083, 1099, ) 1109-11 10, 1114-1115, 1118- ) 1120, 1122-1129) ) ) ) ) AFFIDAVIT OF ALI MIRZAKHALILI I, Ali Mirzakhalili, do hereby swear and affirm as follows: I. I am employed as the Director ofthe Division of Air Quality ofthe State of Delaware Department ofNatural Resources & Environmental Control ("DNREC"). 2. DNREC believes it is in the interest of the public and all Delawareans to reduce greenhouse gas emissions to prevent negative impacts ofclimate change. As a participating State in the Regional Greenhouse Gas Initiative ("RGGI"), Delaware has already begun working

to mitigate greenhouse gas emissions. DNREC is supportive ofthe efforts ofthe United States Environmental Protection Agency ("EPA") to begin regulating greenhouse gas emissions from stationary sources. 3. DNREC is working cooperatively with EPA to implement the requirements of 75 FR 31514 (July 3, 2010) "Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule" (i.e., the Tailoring Rule), and does not anticipate any halt to, or significant permitting delays come January 2, 2011.



### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 232 IMWN C. MINOR "Wile, 8Iale Of Delaware My ConwnIuion Expires November 17. 2012 United States Court ofAppeals for the District of Columbia Circuit Case No. 10-1131 Affidavit ofAli Mirzakhalili Page 2 of24. The burden to DNREC would be much greater without the Tailoring Rule because it could be obligated to permit sources at the current 100/250 ton per year major source threshold. 5. On July 28, 2010, I sent a letter to Mr. Shawn M. Garvin, Regional Administrator U.S. EPA, Region 1lI, outlining Delaware's ability and plans to implement the Tailoring Rule.
6. As I stated in the July 28, 20 I 0, letter, I do not believe Delaware has any legislative impediments to adopting the tailoring thresholds, and believe that Delaware does have the authority to apply the meaning ofthe term "subject to regulation," as established by EPA in 75 FR 31514, in implementing both its Prevention of Significant Deterioration (PSD) and its Part 70 Title V permitting programs. 7. DNREC is scheduled to hold a public hearing on November 10,2010, on amendments to state regulations to explicitly add the higher greenhouse gas thresholds. Delaware anticipates finalizing these regulatory amendments by year-end 20 I0 with a compliance date ofJanuary 2, 2011. 8. I believe that DNREC has adequate resources to implement the Tailoring Rule as ofJanuary 2, 2011, and I am ofthe opinion that the revised major source threshold and significance level limits in the final tailoring rule are sufficiently high to exclude from major

source permitting requirements the multitude of smaller sources described in the final rule.

SWORN TO AND SUBSCRIBED before me this 

## 2-2 day of October, 2010.

# J~cwm 

# l**mt~cJ)** Notary Public 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 24

# Exhibit 6 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 25AFFIDAVIT 

### STATE OF IOWA ) ) ss: COUNTY OF POLK) I, Catharine Fitzsimmons, being first duly sworn, depose and state: 1. I am employed as Chief of the Air Quality Bureau, Iowa Department of Natural Resources (IDNR). I have held this position since 2002 and have been employed by the IDNR for over eighteen years. 2. My primary responsibility is supervision of the Air Quality Bureau and its efforts to fulfill the statutory and regulatory duties of the IDNR to prevent, abate, and control air pollution in the State of Iowa. Part of that responsibility is the development, implementation, and enforcement ofrules adopted by the Iowa Environmental Protection Commission regarding air quality construction and operation permits. 3. On July 20,2010, I wrote a letter to Karl Brooks, Regional Administrator, U.S. Environmental Protection Agency (EPA), Region VII, outlining the IDNR's intentions to adopt a provision ofthe federal Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas Tailoring Rule, published in the Federal Register on June 3,2010. The letter advised that the IDNR was proceeding with administrative rulemaking to amend the State's air quality rules for the PSD and Title V programs for greenhouse gases to match the applicability thresholds and effective dates specified in Phase 1 and Phase 2 of the federal Tailoring Rule. The letter further advised that the Iowa Environmental Protection Commission on that same date approved issuance of a Notice of Intended Action for the proposed rulemaking. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 264. On October 19, 2010, the Iowa Environmental Protection Commission adopted the proposed rulemaking implementing the Tailoring Rule. The rules will be published in the Iowa Administrative Bulletin on November 17, 2010, and are scheduled to become effective December 22,2010. 5. Without the Tailoring Rule, an estimated 61,000 Iowa facilities would need Title V operating permits and 410 Iowa facilities would need PSD permits because of their greenhouse gas emissions. With the Tailoring Rule, as being implemented by the newly adopted Iowa rules, approximately 20 to 65 Iowa facilities would be required to apply for Title V operating permits for the first time and approximately 10 to 20 would need PSD permits because oftheir greenhouse gas emissions.
6. The EPA has found that the current and projected atmospheric concentrations of the six greenhouse gases: carbon dioxide (C02 ), methane (CH4), nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF

### 6)

- threaten the public health and welfare of current and future generations. 7. The IDNR supports the EPA's important efforts to respond to the threat from greenhouse gas emissions and EPA's reasonable approach for implementing those efforts through the Tailoring Rule.

# ~~ CATHARINE FITZSIM

# ~. . Air Quality Bureau Chief Iowa Department ofNatural Resources

Subscribed and sworn to before me thisl..l day of

### O~b,...r ,2010. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 27

# Exhibit 7 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 28

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Case No. 10-1131 (Consolidated with Nos.

1132, 1145, 1147-1148, 1199-1203,1205-1213, 1215-1216,1218-1222; Pending 10-1073, 1083, 1099, 

### 1l09-1110, 1114-1115,1118- 1120, 1122-1129) Respondent. Petitioners,



### v. SOUTHEASTERN LEGAL FOUNDATION, ) FOUNDATION, ET AL., ) 

### ) ) ) 

### ) ) ) ) ) ) ) )
DECLARATION OF DOUGLAS P. SCOTT IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE I, DOUGLAS P. SCOTT, declare as follows under penalty ofperjury: 1. I am the Director of the Illinois Environmental Protection Agency (Illinois EPA) and have served in this capacity since July 1, 2005.1 have among numerous responsibilities as Director of the Illinois EPA the responsibility for maintaining, enhancing and overseeing the protection and improvement ofthe air quality for the citizens of Illinois. This oversight includes maintaining, reviewing and updating the Regulations of Illinois State Agencies related to air pollution. 2. On July 29,2010, I sent a letter to Dr. Susan Hedman, Regional Administrator for the U.S. Environmental Protection Agency (EPA), Region 5, outlining Illinois's response to the Prevention ofSignificant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 2931514; June 3, 2010) (the "Tailoring Rule"). (Letter to U.S. EPA dated July 29, 2010 attached as Exhibit A and is incorporated herein) 3. The July 29, 2010 letter accurately reflected at that time the status of, and Illinois EPA's commitment to, building the infrastructure to incorporate and implement greenhouse gas pennitting requirements into Illinois's federally approved Title V and new source review/prevention of significant deterioration (PSD) permitting programs. 4. As stated in my July 29, 2010 letter, for the federal PSD regulations, "Illinois is a delegated state and therefore can implement the Tailoring Rule's new requirements and thresholds consistent with the provisions and timing outlined by USEPA in the Tailoring Rule and other related documents." 5. States with currently-delegated PSD programs, such as Illinois, have been cooperating with EPA in this manner for years and continue to enjoy substantial discretion in processing permit applications and managing their clean air resources. 6. TItinois EPA with its high level of cooperation with EPA has a level of discretion in establishing Best Available Control Technology (BACT) for various emission sources. 7. To clarify that smaller sources of greenhouse gas (GHG) emissions are not required, as a matter of Illinois law, to obtain construction permits solely because of their GHG emissions, Illinois EPA intends to revise statutory and regulatory provisions to expand and implement the permit exemption provisions. Illinois EPA has already begun the process to revise its permit program consistent with the Tailoring Rule. It is expected that many of these revisions will be accomplished by the summer of2011. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 308. The Tailoring Rule phases in PSD and Title V pennitting requirements for GHG emissions from stationary sources at initially higher thresholds than under the statutory Clean Air Act thresholds. Without the GHG Tailoring Rule, EPA's PSD and Title V pennitting would, as of January 2, 2011, be required for stationary sources at the statutory applicability thresholds of 100 or 250 tons per year. This would result in an overwhelming administrative burden for Illinois EPA, which could in tum result in severe impainnent or delay in the functioning of Illinois's pennitting programs. EPA's Tailoring Rule therefore serves to significantly reduce the
amount of resources necessary for Illinois EPA to implement EPA's actions regarding the regulation ofGHGs under the Clean Air Act. 9. Absent federal legislation, the Tailoring Rule is a good step in the direction of limiting GHG emissions from stationary sources in Illinois and throughout the country in an effort to protect the environment.

I declare under penalty ofperjury under the laws ofthe United States that the foregoing is
true and correct. Executed on

## D~las P. Scott 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 31

# · EXHIBIT A Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 32

### ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
1U21 Nurlh Cr,mu Avenue**Eii~t,** 1'.0. Box 1'J2 ;'f" Spllll!;iidd, Illinois**!,~;()4·1)17('** • (21 7) 7H:!·2U:!() James R. Thonlpson Center, 100 Wcsl Randolph, Suile 11·3(lO, Ch,,' .lg0, IL hOh01 • ('112) f\ 14·1',026 (217) 782-3397 TDD (217) 782-9143 July 29, 2010 PAT QUINN,**G()VFRN()f~** DOU(.:LAS P. SCOTT, DIRfCTOR

Dr. Susan Hedman, Regional Administrator Office of the Regional Administrator, R-19J U. S. Environmental Protection Agency, Region 5 .77 West Jackson Boulevard

Chicago,.Il1inois 60604-3507

Re: Tailoring Rule Implementation in Illinois

Dear Dr. Hedman: This letter is in response to the United States Environmental Protection Agency's (USEPA) request for information regarding Illinois' planned implementation of the Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (Tailoring Rule). For the federal Prevention of Significant Deterioration (PSD) regulations, Illinois is a delegated state and therefore canimplement the Tailoring Rule's new requirements and thresholds consistent with the provisions and timing outlined by USEPA in the Tailoring Rule and other related documents. However, there are impacts from the Tailoring Rule in regards to construction and operating permit requirements in Illinois. A primary issue concerns the current requirement that smaller sources will require a construction and operating permit when greenhouse gases (OHOs) become regulated pollutants, and inherently, specified air contaminants under Illinois regulations. Under current Illinois regulations, sources in IlJinois that emit GHGs will be required to obtain a construction and operating pennit unless specifically exempted. These permitting requirements would result in many smaller sources being required to get permits solely because oftheir GHG emissions. Since the permitting ofthese sinaller sources ofGHG emissions would be unduly burdensome, it is necessary that Illinois' permit exel.llptionprovisiOljs be expanded so as to not require permitting of smaller GHG sources. Consequently, Illinois 

### EPA intends to revise its regulations so as to expand the permit exemption provisions to cover smaller sources of GHGs.
For Illinois' Title V program, Illinois must revise both its statutes and regulations to implement the Tailoring Rule. GHGs are considered regulated air pollutants under Illinois law and the pdmary issue is not whether major sources are required to obtain Title V permits for GRGs under the Tailoring Rule, but rather: I) the large number of sources that would need permits without a revision to the existing major source thresholds; and 2) the unintended large fee amounts that \vould apply under the existing Title V fee structure which is based on criteria air pollutants.

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### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 33To address these issues, Illinois EPA intends to revise the lllinois Environmental Protection Act (IL Act) to include the larger major source thresholds for GHGs, which are emitted in much greater quantity than criteria pollutants, and to add a new fee schedule specifically for GH Gs. Since the existing fee schedule did not contemplate the inclusion of GHGs in determining the fee amounts, and since.the fee amoUllts w()uld be extraordinarily high for GHGs, the Illinois EPA must revise its fee structure to accommodate the inclusion of GHGs in a reasonable manner. Furthermore, the Illinois EPA will likely need to cleanup some existing legislation that could be interpreted in 

### amannerto restrict GHG regulation. We intend to propose these legislative fixes in concert with the other changes. In regards to timing, Illinois is preparing to m()ve forward with a proposal to the Illinois Pollution Control Board (IPCB) to expand Illinois' permit exemptions to ensure permit requirements are not applied to smaller sources ofGHGs. This regulatory revision is inte11wined with other actions Illinois is taking to address the Tailoring Rule requirements and maybe dependent on the timing ofplanned legislative changes. For the necessary Title V related legislative revisions indicated above, Illinois is constrained by the Illinois Legislature's schedule. Ifthe legislative revisions are introduced in the fall veto session, it is feasible that the changes could be signed into law in the first few months of2011. If the legislative revisions are not able to be addressed by the Illinois Legislature until the spring session 0[2011, then such changes are likely not to be signed into law until late spring or early summer of20 II. The regulatory revisions would follow shortly thereafter and Illinois EPA can seek fasHrack and expedited rulcmakings from the lPCE. Please note that Illinois also needs to take several other <ictions related to the Tailoring Rule, including fee and resource issues identified during a fee and resource assessment recently performed. These actions include an increase in the existing fees for Criteria pollutants and ensuring that Illinois EPA receivesadditional fees necessary to cover costs associated with the Tailoring Rule. The cumulative efforts of Illinois EPA to address the Tailoring Rule is placing an enormous resource drain on our already stressed resources and involves the pulling of personnel from their normal day-to-day activities to assist in plmming and implementation of the Tailoring Rule. Please bear with us as we move forward to address these issues.
In summary, both legislative and regulatory tixes are needed for Illinois EPA to implement the Tailoring Rule. The timing of getting these fixes in place ranges from as early as February 2011 for legislation to a later date dependent on several factors. In any case, Illinois is taking the necessary action to allow implementation ofthe Tailoring Rule in a timely manner.

. Very truly yours,

# ~&" Director, Illinois EPA 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 34

# Exhibit 8 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 35

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT



### SOUTHEASTERN LEGAL FOUNDATION,) Case No. 10-1131 FOUNDATION, ET AL., Petitioners,



## v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. ) 

### ) (Consolidated with Nos. ) 1132, 1145, 1147-1148, ) 1199-1203,1205-1213, ) 1215-1216, 1218-1222; ) Pending 10-1073, 1083, 1099, ) 1109-1110,1114-1115,1118- ) 1120, 1122-1129) ) ) ) )



### DECLARATION OF NANCY L. SEIDMAN IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE 

### I, Nancy L. Seidman, declare as follows: 1. I am the Deputy Assistant Commissioner for Climate Strategies at the Massachusetts Depaliment ofEnvironmental Protection ("MassDEP"). The climate strategies group was established in 2008 to work within MassDEP and Executive Office ofEnergy and Environmental Affairs on policies and programs to control Green House Gases (GHG). Prior to this assignment I was the Division Director for MassDEP's TranspOliation and Consumer programs. 2. Currently Massachusetts does not have a federally-approved prevention of significant deterioration ("PSD") program. Massachusetts has a federally-approved Part 70 Title V Operating Permit program, which is codified at

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 36

### 310 C.M.R. 7.00, App. C (Operating Permit and Compliance Program). Pursuant
to that program, MassDEP reviews and issues operating permits to major stationary sources of celiain pollutants. 3. As detailed in MassDEP Commissioner Laurie Burt's August 2,2010 letter to EPA regarding Massachusetts' plan for incorporating EPA's "subject to regulation" approach under the Final Greenhouse Gas Tailoring Rule ("Tailoring Rule"), the Massachusetts Operating Permit program does not include GHGs. (A

true and accurate copy ofthis letter is attached hereto as Exhibit 1.) In order to comply with the final EPA regulation, MassDEP intends to amend 310 C.M.R. 7.00, App. C to include GHGs. No statutory changes are necessary to make such

an amendment. 4. Specifically, MassDEP plans to amend the applicability provision of the regulations (310 C.M.R. 7.00, App. C(2)(a)) to add a numerical threshold or multiple thresholds that would include, or have the effect ofincluding, a facility with the potential to emit 100,000 tons per year of GHGs expressed as CO 2 

### equivalents. The revisions are being drafted and MassDEP anticipates proposing them for public review and comment during the first half of calendar year 2011. 5. For the reasons discussed above, EPA, not MassDEP, will handle the permitting of any PSD applicable major sources starting on January 2, 2011, and until Massachusetts either accepts delegation ofthe federal PSD program or has an approved SIP covering GHGs under the PSD and Operating Pelmit programs.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 37

### Once the necessary 

### SIP or delegation agreement has been approved, MassDEP expects that it will have sufficient resources to administer these programs. 6. MassDEP's review ofits records indicates that approximately 150 major sources cUlTently under the Operating Permit program, I plus an additional 15 major sources not cUITently regulated under that program,2 will be subject to GHG emissions regulation under the Tailoring Rule. With respect to the PSD program, MassDEP estimates that under the permitting thresholds in the Tailoring Rule three to five additional PSD permits will be required per year. 3


### 7. Notably, the burden to MassDEP of administering these programs would be significantly higher ifthe Tailoring Rule were not in place. This is because the PSD and Title V programs would apply to a much larger population of stationary sources under existing Clean Air Act thresholds than those included in the Tailoring Rule to phase in the permitting requirements for GHG emissions under those programs. 8. Massachusetts faces significant harm from climate change. Inundation and periodic storm surges and flooding events are expected to cause significant detrimental impacts on coastal communities

- where 75 percent ofthe Commonwealth's population is located

- and substantial loss ofthe

I These major sources are largely fuel combustion sources (e.g., electric generating units) and large industrial processes. 2 

### These major sources are predominately large methane-emitting landfills. 3 

### These permits would be required for new or modified large fuel combustion sources. Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 38

### Commonwealth's coastal property, including infrastructure, public facilities, and habitat that is vital to rare and threatened species. Elevated temperatures are expected to cause dangerously hot conditions in Massachusetts' cities and to aggravate air pollution from ground level ozone and other components of smog. 9. As a result, Massachusetts is committed to curbing GHG emissions and has made substantial efforts to do so within its borders through participation in the regional greenhouse gas initiative and implementation ofvarious regulatory
programs including mandatOlY GHG reporting requirements in 2009 (310 CMR 7.71), the Massachusetts Global Warming Solutions Act chapter 298 ofthe Acts of 2008, emission standards for existing power plants established in 2001 (310 C.M.R. 7.29), and adoption of California's Low Emission and GHG Vehicle
program, including requirements for zero emission vehicles (310 CMR 7.40). Massachusetts has made implementation ofthese programs a priority even though difficult economic times have stretched government resources. 10. Because EPA's regulation ofGHG emissions from stationary sources is an essential part ofpreventing the harm that Massachusetts will face from climate change, the Commonwealth is equally committed to implementing these important federally-required permits in Massachusetts.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 39

### I declare under penalty ofpeljury under the laws of the United States that the foregoing is true and correct. Executed in Boston, Massachusetts on October 'Z.42010.

# ,n**~=:::~':~.** 

# C}**-L~~~L/"** 

# eNa;:;y L. Seidman

Deputy Assistant Commissioner Office of Climate Strategies Massachusetts Department of

Environmental Protection Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 40DEVALL. PATRICK Governor TIMOTHY P. MURRAY Lieutenant Governor
August 2, 2010 

### COMMONWEALTH OF MAsSACHUSETTS EXECUTIVE OFFICE OF ENERGY & 

### ENVIRONMENTAL AFFAIRS 

### DEPARTMENT OF ENVIRONMENTAL PROTECTION ONE WINTER STREET, BOS1'ON, MA 02108 617-292-5500

IAN A. BOWLES Secretary LAURIE BURT

Commissioner

Curt Spalding Regional Administrator US Environmental Protection Agency

- Region I 5 Post Office Square

- Suite 100 Boston, Massachusetts 02109-3912
Dear Mr. Spalding:
I am pleased to respond to EPA's request for information contained in the final Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, published in the Federal Register on June 3, 2010. Since Massachusetts does not currently have a SIP-approved PSD program, this response is limited to the federally approved Part 70 Operating Permit program, codified at 310 CMR 7.00: Appendix C Operating Permit and Compliance Program, While the Department ofEnvironmental Protection (MassDEP) regulates greenhouse gases (GHG) under some ofour regulations such as 310 CMR 7.29, the regional greenhouse gas initiative, and engines and turbines under our enviromnental results program, GHGs are not currently a regulated pollutant as defined in our federal operating permit program regulations\ therefore, the operating permit program currently does not include GHG. First, the regulatory provisions of310 CMR 7.00 Appendix C cannot be interpreted to include the term "regulated air pollutant" to include pollutants "subject to regulation" as defined in the Tailoring Rule.

I Regulated Air Pollutant is defined as: (a) Nitrogen oxides or any volatile organic compound; (b) Any pollutant for which a national ambient air quality standard has been promulgated; (c) Any pollutant that is subject to any standard promulgated under 42 U.S.C. 7401, The Clean Air Act. § 111, New Source Performance Standard 40 CFR Part 60; (d) Any Class I or Hsubstance subject to a standard promulgated under or established by 42 U.S.C. 7401. Title VI; or (e) Any pollutant subject to a standard promulgated under 42 U.S.C. 7401, The Clean Air Act, § 112, National Emissions Standards for Hazardous Air Pollutants, 40 CFR Part 61. or other requirements est&blished under 42 U.S.C. 7401, The Clean Air Act, § 112, including §§ 112(g), (j), and (r), inclnding Ihe fnllnwing: I. Any pollutant subject to requirements under 42 U.S.C. 7401, § 1120). Ifthe EPA fails to promulgate astandard by the date established pursuant to 42 U.S.C. 7401, The Clean Air Act, § 112(e), any pollutant for whieh a subject source would be major shall be considered to be regulated on the date 18 months after the applicable date established pursuant to 42 U.S.C. 7401, The Clean Air Act, § 112(e); and 2. Any pollutant for which the requirements of42 U.S.C. 7401, § 112(g)(2) have been met, but only with respect to the individual sonrce snbject tn 42 U.S.C. 1401, § 112(g)(2) requirement. (310 CMR 1.00 Appendix C(I»

This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617.556·1057. 'CDON 1·866·539·7622 or 1·617-574·6868. MassDEP on the World Wide Web: http://wvM.mass.goYldep 

# o Printed on Recycled paper 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 41Curt Spalding August 2, 20 I0

page 2

Second, the applicability provisions ofthe federally approved MassDEP Palt 70 operating permit program do not currently establish pollutant-specific numeric emissions thresholds for GHG. (a) 310 CMR 7.00: Appendix C applies to any facility which: (I) emits or has federal potential emissions, in the aggregate, ofany regulated air poUutant in an amount which equals or exceeds: 50 tons per year ofVOC or NOx, ten tons per year ofany hazardous air pollutant (HAP) subject to 42 U.S.C. 7401, § 112,25 tons per year ofany combination ofHAPs, or 100 tons per year ofany otherregulated air pollutant;

... (310 CMR 7.00: Appendix C(2)) Therefore, to comply with EPA's final regulation, MassDEP intends to adopt EPA's requirements for Title V permitting for facilities with GHG emissions. In order to extend the applicability provisions of310 CMR 7.00 Appendix C to GHGs consistent with the Tailoring Rule thresholds, MassDEP will amend the regulations to include a numerical threshold or multiple thresholds in the applicability section that has, or has the effect of, including a facility with the potential to emit 100,000 tons per year GHGs expressed as CO2 equivalent.
MassDEP believes there are no statutory changes needed to make such changes. As resources and priorities allow, MassDEP will develop regulation language and supporting documentation for public review and comment during the first halfofcalendar yeal' 2011. Should you or your staffhave any questions regarding this submittal or wish any further information, please contact Nancy 

### 1. Seidman, Deputy Assistant Commissioner for Climate Strategies, at 617-556-1020.

# Jl~S.JI Laurie Burt Commissioner Enclosures

cc: David Conroy, US EPA, Region I Ida McDonnell, US EPA, Region I Ian Bowles, Secretary, Executive Office ofEnergy and Environmental Affairs James Colman, Assistant Commissioner, DEP Nancy Seidman, Office ofClimate Strategies/BWP, DEP Barbara A. Kwetz, Division ofPlanning & Evaluation! BWP, DEP Steven DeGabriele, Division ofBusiness Compliance/BWP, DEP 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 42

# Exhibit 9 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 43ORAL ARGUMENT NOT YET SCHEDULED


### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

SOUTHEASTERN LEGAL FOUNDATION,) Case No. 10-1131 FOUNDATION, ET AL., Petitioners,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. 

### ) ) (Consolidated with Nos. ) 1132,1145,1147-1148, ) 1199-1203, 1205-1213,· ) 1215-1216, 1218-1222; ) Pending 10-1073,1083,1099, ) 1109-1110,1114-1115,1118- ) 1120, 1122-1129) 

### ) ) ) )



### DECLARATION OF GEORGE S. ABURN IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE

I, George S. Abuffi, declare as follows:

1. I am employed as the Director ofthe Air and Radiation Management Administration (ARMA) within the Maryland Department ofEnvironment ("Department"). I have held this position since February of 2006. In this capacity,
among other responsibilities, I oversee management ofthe State's air quality permitting and climate change programs.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 44

### Prior to my appointment as Director, I served as the Department's Manager ofthe Air Quality Planning and Monitoring Program for 14 years. In that position,
I was responsible for development of State plans to achieve compliance with National Ambient Air Quality Standards, development ofnew regulatory initiatives and adoption of air quality control regulations to address air quality problems, as well as air quality education and outreach efforts.
I have worked in the air quality control programs for the Maryland Department ofthe Environment or its predecessor agency in various capacities for the past 27 years. I received a Bachelor's Degree in Environmental Engineering from Brown University in 1978. 2. In my professional capacity, I have served as Chairman ofvarious working committees for the Ozone Transport Commission (OTC), the National Association ofClean Air Agencies (NACAA) and the Mid-Atlantic Regional Air Management Association (MARAMA). I am currently serving as the Chairman of NACAA's Criteria Pollutant Committee. 3. Maryland is supportive ofEPA's goals for greenhouse gas ("GHG") regulations as applied to stationary sources and is working cooperatively with EPA

to implement its Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule ("Tailoring Rule" or "Rule") in Maryland on an expedited

2 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 45

### schedule. By letter to Diana Esher, Director ofthe Air Protection Division ofEPA Region III dated August 2, 2010 (attached as Exhibit A), the Department advised EPA ofMaryland's plan to implement the Tailoring Rule and to timely adopt revisions to the Department's permitting regulations that are necessmy for implementation ofthe Rule. 4. Consistent with the plan, the Department has prepared the necessary amendments to its existing State permitting regulations. The proposed amendments have been approved by the Department's Air Quality Control Advisory Council. The Department anticipates final adoption ofthe amendments before January 1,2011 and expects to implement the Tailoring Rule on January 2, 2011. As ofthis date, the Department has planned for the smooth integration of the new requirements into the current permitting process. The Department currently has adequate resources to implement PSD and Title V permitting under the Tailoring Rule on January 2,2011 and will implement Step 1 ofthe Rule with existing staff. Staffrequirements will be reevaluated for Step 2 and future steps as they are finalized by EPA. 5. The regulatory burden on Maryland and its stationary sources would be much greater in the absence ofthe Tailoring Rule. Under the current PSD and Title V operating permit programs, many thousands ofvely small greenhouse gas emission sources not currently regulated under these permit programs would be

3 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 46

### required to obtain permits for the first time. The result would be a dramatic increase in the number ofrequired permits. The Department does not currently have, nor does it expect to have, adequate resources to manage an expansion ofthe permits program ofthis magnitude.
6. With more than 3,000 miles ofcoastline, Maryland is among those

states that will be most impacted by the effects ofclimate change. Maryland's

coast is particularly vulnerable to hurricanes and other episodic storm events, as well as chronic problems associated with more extreme weather events and rising

sea levels: shoreline erosion, coastal flooding, storm surges, inundation and saltwater intrusion into groundwater supplies. 7. Additionally, the effects ofclimate change will hamper the multi-state and federal effort to restore the Chesapeake Bay that is currently under way. Stormwater runoffis a major contributor to the Bay's nutrient pollution problem. Increased frequency ofprecipitation events will result in more stormwater runoff during the winter and spring months and increased nutrient levels in the Bay and its tributaries. Due to additional energy of storms from warmed waters, the violence of storms and frequency and intensity of stream bed and bank erosion
may also increase. Warmer temperatures and increased density stratification in the estuary will further degrade water quality.

4 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 47

### In addition, shoreline erosion results in increased sediment loads to the Bay
at a time when extensive efforts are going into reducing sediment loads from the watershed. This is particularly critical because shoreline erosion loads sediment to the shallow areas where submerged aquatic vegetation, a critical habitat factor, is especially vulnerable. Further degradation ofwater quality in the Bay will result in the need for even more regulatory controls in order to achieve water quality goals. 8. The Maryland Commission on Climate Change, which was appointed by the Governor in 2007, issued a comprehensive report and set of recommendations to reduce greenhouse gas emissions across all sectors ofthe State's economy and mitigate the adverse effects ofclimate change. The release of the Commission's climate action plan in 2008 was followed the next year by

enactment of State legislation-the Greenhouse Gas Emission Reduction Act of 2009-that requires Maryland to reduce State-wide greenhouse gas emissions 25% by 2020 and to develop a plan to reduce emissions by up to 95% by 2050. Maryland is a member ofthe Regional Greenhouse Gas Initiative, or RGGI, the first mandatory market-based cap-and-trade program in the nation to reduce greenhouse gas emissions from coal-fired power plants. Maryland has also adopted the California "clean cars" standards, which will reduce greenhouse gas emissions from motor vehicles 30% by 2016.

5 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 48

### Regulation of greenhouse gas emissions from stationary sources under the Tailoring Rule will advance these efforts by the State ofMaryland to achieve its greenhouse gas emission reduction g'oals and combat climate change.

I declare under penalty ofperjury under the laws ofthe United States that the foregoing is true and correct.

Executed on 

## 10 

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### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 49,";-

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# MDE MARYLAND DEPARTMENT OF THE ENVIRONMENT 1800 Washington Boulevard. Baltimore MD 21230 410-537-3000. 1-800-633-6101

Martin O'Malley Governor Shari T. Wilson Secretary Anthony G. Brown Lieutenant Governor 

## .AUG

- 2 20'10 Robert M. Summers, Ph.D. Deputy Secretary

Ms. Diana Esher, Director Air Protection Division U.S. EPA Region III 1650 Arch Street Philadelphia, PA 19103-2029 Re: Greenhouse Gas Permitting Dear Ms. Esher: I am writing to advise you of the Department's plans with regard to permitting Greenhouse Gas Sources under Maryland's Title V air operating program and Maryland's Prevention of Significant Deterioration (PSD) program. 1. Title V Air Operating Permit Program A. Interpretation of "major source" to include sources of greenhouse gases: The Department interprets its current definition of "major source" to include sources of greenhouse gas emissions. The Department's legal authority for this interpretation is as follows: Code of Maryland Regulations ("COMAR") 26.11.02.C(1) defines "major source" for purposes of COMAR 26.11.02 (non-Title V permits) and COMAR 26.11.03 (Title V permits) to include: "A major stationary source of air pollutants, as defined in section 302 of the Clean Air Act, that directly emits, or has the potential to emit, 100 tons per year or more of any air pollutant, including a major source of fugitive emissions of the pollutant, as determined by rule by the EPA." The Department interprets the above current definition of "major source" in COMAR to include any major stationary source of air pollutants that emits or potentially emits 100 tons per year or more of anything that has been regulated by EPA as an air pollutant. Under the Department's interpretation, this would include GHG because EPA has regulated GHG as an air pollutant under the Light Duty Vehicle Ruie, as well as the GHG Tailoring Rule.

Try Users 1-&00-7.35-2258 Via Maryland Relay Service www.mde.state.md .lIS 

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### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 50Ms. Diana Esher Page 2

B. Amendment of the definition "major source" to create a definition of the phrase "as determined by rule by the EPA": The Department intends to regulate emissions of GHG at the numerical thresholds specified in the GHG Tailoring Rule. The Department likely will accomplish this by an amendment to the current definition of "major source" at COMAR 26.11.02C(1), that will define the phrase "as determined by rule by the EPA" as used therein. That amendment will contain language consistent with (and not less stringent than) the language in EPA's definition of "subject to regulation" in its GHG Tailoring Rule at 40 CFR 70.2. 2. Prevention of Significant Deterioration Program The Department will undertake a rulemaking to clarify that PSD sources in Maryland are subject to the GHG Tailoring Rule's amendments to 40 CFR 52.21. Currently, Maryland's PSD program applies to "PSD sources" as defined in COMAR 26.11.018(37). That definition is "any new or modified source subject to the provisions of 40 CFR section 52.21, as published in the 2008 edition

... " The Department will amend that definition to either delete or modify the text "as published in the 2008 edition." The Department will amend identical language in its PSD program regulations at COMAR 26.11.06.14(b)(1), which provides that a person may not construct, modify or operate a PSD source in violation of any provision of 40 CFR 52.21, as published in the 2008 edition." The Department intends to regulate PSD sources of GHG emissions at the numerical thresholds specified in the GHG Tailoring Rule. The Department likely will accomplish this by including language in its amendment of the definition of "PSD sources" in COMAR 26.11.01 8(37)(a) and (b) that is consistent with (and not less stringent than) the language in EPA's definition of "subject to regulation" in its GHG Tailoring Rule at 40 CFR 52.21. The Department anticipates completing this rulemaking before January 2, 2011.

. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 51Ms. Diana Esher Page 3

I look forward to working with you as we implement GHG permitting in Maryland. If you have any questions, please feel free to call me at (410) 537- 3255 or have a member of your staff call Ms. Karen Irons, Program Manager of the Air Quality Permits Program, at (410) 537-3230 her Sincerely,

# A'A~/fJ0~ 

# t**Ge~;:[;burn,** Director Air and Radiation Management Administration cc: Ms. Kathleen Anderson 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 52

### 1 

# J

1 1 1 1 1 1 1 1 1 1

. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1
1 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 53

# Exhibit 1 0 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 54

### ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT



### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, SOUTHEASTERN LEGAL FOUNDATION, FOUNDATION, et aI., 

### (Consolidated with Nos. 1132, 1145, 1147-1148, 1199-1203, 1205-1213, 1215-1216, 1218-1222; Pending 10-1073, 1083, 1099, 1109-1110, 1114-1115, 1118- 1120, 1122-1129) Case No. 10-1131

Petitioners,

Respondent. v. ) ) ) ) ) ) ) ) ) ) )

### ----------~---) DECLARATION OF JAMES P. BROOKS IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE 

### I, James P. Brooks, declare as follows: I. I am over eighteen years of age and understand the nature and obligations ofan oath. 2. I am currently employed as the Director ofthe Bureau ofAir Quality in the Maine Department ofEnvironmental Protection ("DEP"). I have been employed by the DEP for over 26 years, and have served as the Director ofthe Bureau ofAir Quality for over 15 years. 3. Maine faces significant harm from climate change both in its sovereign capacity

c 

### as an owner ofland, and through harm to its citizens. For example, periodic storm surges and flooding events are expected to cause increased erosion and inundation of coastal property, including at Maine's fifteen coastal State parks, and damage to associated infrastructure, public facilities, and habitat that is vital to rare and threatened species. Elevated ambient air temperatures are also expected to aggravate air pollution from ground level ozone and other components of smog.



### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 554. I have primary responsibility at DEP to oversee the protection and improvement of air quality for the citizens ofMaine. This oversight includes maintaining, reviewing and updating Maine regulations governing air pollution. 5. On August 5, 2010, I sent a letter to H. Curtis Spaulding, Regional Administrator for the U.S. Enviromnental Protection Agency ("EPA"), outlining Maine's response to the Prevention a/Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR 31514; June 3, 2010) (the "Tailoring Rule"). This letter is attached as Exhibit A.
6. My August 5, 2010, letter to Regional Administrator Spaulding explains both DEP's authority to incorporate and implement greenhouse gas permitting requirements into Maine's federally approved Title V and New Source Review Prevention of Significant Deterioration ("NSR PSD") permitting programs, as well DEP's intent to incorporate and implement those requirements expeditiously.
7. DEP has already begun the process to revise both the Title V and NSR PSD permit program regulations to incorporate permitting requirements for greenhouse gas emissions

sources consistent with the Tailoring Rille. We have drafted the proposed regulatory amendments, and DEP's oversight board and rulemaking authority, the Board ofEnviromnental Protection ("BEP") posted them to public comment on October 7, 2010. The BEP will hold a public hearing on the proposal November 11,2010. The deadline for the filing of comments is November 29,2010. I anticipate final adoption ofthese rule changes will take place at the BEP's scheduled meeting on January 20, 2011. 8. Under current and approved permitting staffing levels, DEP has adequate

resources to process permits for stationary sources of greenhouse gases in Maine, at the emissions thresholds established in the Tailoring Rule.

2 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 569. The Tailoring Rule's regulatory thresholds for phasing in Title V aod NSR PSD permitting requirements for greenhouse gas emissions are higher thao the thresholds that would apply in the Rule's absence. This will effectively require DEP to issue fewer permits thao would otherwise be required, aod therefore reduce the administrative burden on permitting staff. 10. I believe the Tailoring RuIe is a reasonable and appropriate meaos to begin limiting greenhouses gas emissions from stationary sources in Maine aod throughout the country in ao effort to protect public health aod the environment.

# ~l~ ames P. Brooks :::Bureau ofAir Quality Maine Department ofEnvironmental Protection

3 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 57OCT-10-10IO 08:0SAM FROM-OEP AIR BUREAU 1877641 T-891 P.001/OOl F-S94 ST ATE OF MAINE DEPARTMENT OF ENVIRONMENT.-\L PROTECTION EXHIBIT
A

JOHN ELIAS BALDACCI GOVEI'<NOR AUg11st 5, 20 J0

M:. H. Curtis Spalding, Regional Administrator EPA-New England, Region 1 5 Po;t Office Square, Suite 100 Bost,)ll, Mass. 02109-3912
Dear Mr, Spalding:
TIus letter is to inform you that the Maine Department ofEnvironmemal Protection, Bureau ofAir Quality (BAQ) has the statutory and regulatory authority to implement PSD and Title V pennitting for greenhouse gases. Maille's Statutory authority to regulate C02 is provided in 38 MRSA § 582 (Definitions) and 

### 5 590 (Licensing). Greenhouse gases are within the broad and inclusive statutory defiI\ition of "air contaminant" set forth in 38 MRSA § 582(1). Additional regulatory auth'lrity is found in Chapter 100, Definitions Regulation, Section 137, Regulated pollutant. Under subsection G, 

### a Regulated pollutant lTIeans "Any pollutant for which a regulation or standard has been adopted by the Maine Board ofEnvironmental ProtL:ction; or ... " The Maine Boa:rd ofEnvironmental Protection previously adopted Chapter 137, Emissions Statement, which requires reporting of C02 emissions al,d Chal'ter 

### J56, C02 Budget Trading Program which implemenrs the Regional Greenhouse Gas [nitiative, thereby causing C02 to be classified as a regulated pollutant.
The BAQ recognizes cet1ain regulatory chal,ges will likely be appropria.te to fully implement the Tailoring Rnle, such as revising tbe Chapter J00 definitiOl,s of Significant Erni,;sions and Significant Emissions Increase. We anticipate that tbe necessary regulatory changes will be adopted before January 2, 2011.
If you or your staffhas al,y questions feel free to contact me at (207) 287-7044. Sincerely,

# ~B~D~ Bun-au ofAir Quality Miline DEP
Cc: Jerry Reid, Office of Attorney General DAVID p.l.ITTe!.L**CO~!MI£F.IONf-r**

AUCUSTA 17 STATE HOUSE STnTION AUGUSTA, MAINE O-f13J.0017 (107) 2X7.7(,/iX FAY..: (2:[-1) 187-7It2b RAY BLDG_. HOSPtT"L ST. BANGOR 106 HOGAN ROAO. SUITE 6 BANGOR, MAINE 04401 (207) '.1-11·4570 FAX: (207) ';l41·4,5.IH PORTLAND 3\2 CANCO ROAD PORTLAND, MAINE 04103 (207) ,22·6300 F/0{, (207) 822·6)0) PRESQUE ISLe 1235 CENTRAL DRlVE, SKY\"'AY PARK PRESQUE ISLE, MAINE 0,67'·2094 1.207) 7"·0477 FAX, (207) 760-3 j.1J 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 58

# Exhibit 1 1 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 59

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT SOUTHEASTERN LEGAL FOUNDATIONET AL.,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Pending Consolidation with Nos. 10- 1073,1083,1099,1109-1110,1114- 1115,1118-1120,1122-1129 Consolidated with Nos. 1132, 1145, 1147-1148,1199-1203,1205-1213, 1215-1216 & 

### 1218-1222 Case No. 10-1131 Petitioners, v. ) ) 

### ) ) ) ) ) 

### ) ) 

### Respondent. ) ---------''----------- 

### DECLARATION OF DR. DONALD R. VAN DER VAART 1. 

### I, Dr. Donald R. van der Vaart, am currently, and have been since 2005, Chief of the Permitting Section of the Division of Air Quality ("NCDAQ") of the North Carolina Department of Environment and Natural Resources. 2. NCDAQ is authorized to issue all air emissions permits that are issued
to stationary sources in North Carolina (except to the extent that limited local
programs have been delegated authority to issue such permits). 3. NCDAQ is responsible for issuing permits under the State's Nonattainment New Source Review and Prevention of Significant Deterioration
programs (collectively, "NSR") and the State's operating permits program ("Title V"). The State's NSR and Title V programs have been approved by the United States Environmental Protection Agency, authorizing the State to issue permits

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 60

### under state law that discharge the State's requirements under the federal Clean Air
Act. 4. I am familiar with the federal rule commonly known as the Greenhouse Gas ("GHG") Tailoring Rule. I am familiar with the stated purpose and function of that rule, which is to "reliev[e]

.. , resourc;e burclens by pl1(ising in the applicability of' certain Clean Air Act permitting "programs to GHG sources, starting with the largest GHG emitters." 75 Fed. Reg. at 31,514 (June 3,2010). 5. North Carolina is currently adopting new rules to implement the Tailoring Rule as a matter of state law. I anticipate that the State's proposed rule

to adopt the federal Tailoring Rule will come before the Environmental Management Commission, which has authority to promulgate such rule, in November 2010. If 

### approved, the rule would be forwarded to the State's Rules Review Commission for review in December 2010. If 

### the rule clears all necessary
processes, it would become effective January 2, 2011.
6. Adoption of the Tailoring Rule in North Carolina would reduce the number of potentially permitted sources as compared to North Carolina's current law. I have reviewed the number of sources that would be potentially subject to NSR and Title V permitting under the Tailoring Rule. I have also reviewed North Carolina's available resources to conduct NSR and Title V permitting reviews. I
-2- Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 61

### conclude that North Carolina has the necessary resources to begin permitting of GHG sources under the NSR and Title V programs if the Tailoring Rule is implemented in North Carolina on January 2, 201 I.


### 7. I have personal knowledge of the above-stated facts or I have obtained

SUCll 

### kno\Vledge after revie\V of NCDAQ's books and records as they are kept in the ordinary course of business.
I declare under penalty of perjury that the foregoing is true and correct.

-3- Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 62

# Exhibit 1 2 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 63

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Case No. 10-1131 (Consolidated with Nos. 1132, 1145, 1147-1148, 1199-1203, 1205-1213, 1215-1216,1218-1222; Pending 10-1073,1083,1099, 1109-1110,1114-1115,1118- 1120,1122-1129) Petitioners,

Respondent. v. 

### SOUTHEASTERN LEGAL FOUNDATION, ) FOUNDATION, ET AL., ) ) ) ) ) ) ) ) ) ) ) )



### DECLARATION OF ROBERT R. SCOTT 

### IN OPPOSITION TO MOTIONS FOR A STAY OF EPA'S GREENHOUSE GAS TAILORING RULE I, 

### Robert R. Scott declare as follows: 1. I am cUlTently employed as the Director ofthe Air Resources Division ofthe New Hampshire Department ofEnvironmental Services (NHDES). I have been employed by NHDES for over 15 years.
2. I am responsible for ensuring that New Hampshire achieves and maintains air quality that is protective ofpublic health and our natural environment. My oversight responsibilities include maintaining, reviewing and updating the regulations ofNew Hampshire related to air pollution. Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 64

### 3. On July 30, 2010, I sent a letter to Curtis Spalding, Regional Administrator for the U.S. Environmental Protection Agency (EPA), outlining New Hampshire's
response to the Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR 31514; June 3, 2010) (the "Tailoring Rule"). (Letter to U.S. EPA dated July 30,2010 attached as Exhibit A)
4. As described in the July 30, 2010 letter, New Hampshire's State Implementation Plan ("SIP) currently includes federally-approved Prevention of Significant Deterioration ("PSD") and Title V programs, and it 

### is necessary to modify New Hampshire's regulations for those programs to establish separate thresholds for greenhouse gases in order to effectively administer the SIP-approved PSD and Title V programs in light ofthe Tailoring Rule.
5. NHDES has already begun the process to revise both the Title V and PSD pertuit program regulations to modify those thresholds in order to provide authority

to issue permits for greenhouse gas emissions sources, consistent with the Tailoring Rule. We have drafted our initial proposal and have scheduled the public hearing for October 28, 2010. As detailed in the July 30, 2010 letter to Regional Administrator Spalding, NHDES intends to complete the state rulemaking process in December 2010.

6. NHDES is supportive ofEPA's goal ofreducing greenhouse gas emissions from stationary sources, and the Tailoring Rule is an important part oflimiting

2 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 65

### these emissions in New Hampshire and the rest ofthe nation. New Hampshire faces significant harm from climate change. As described in the New Hampshire Climate Action Plan issued in March 2009 by the New Hampshire Climate Change Policy Task Force, greenhouse gas emissions are contributing to the changing New England climate, including, among other things, warmer winters and reduced snowfall. This, along with changes to species viability, is expected to affect New Hampshire's economically important ski areas and the snowmobiling and maple
syrup industries. The changing climate is also expected to cause increased severe weather events and flooding risk in the region, with associated economic impacts from property damage and lost productivity. (A complete copy of the New Hampshire Climate Action Plan can be found at 

### http:// des.nh. gov

### 1 organization!divisionsl

### air/tsb/tpslclimatelaction plan!documentsl nhcap finaLpdf).

I declare under penalty ofpeljury under the laws ofthe United States that the foregoing is true and correct.

Executed on October 22, 2010, at Concord, NH.

Robert R. Scott

3 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 66

### The State ofNew Hampshire 

## Department of Enviromnental Services

Thomas S. Burack Commissioner July 30, 20 10 Curtis Spalding Administrator

- EPA Region 1 5 Post Office Square, Mail Code: ORAOI-4 Boston, MA 02109-3912 Re: Prevention of Significant Deterioration (PSD) IIUU Title V Greenhouse Gas (GHG) Tailoring Rule NHDES Implemeutation of Final Rule
DearMr. Spalding: On June 3, 2010 (PR 75 31514), the United States Environmental Protection Agency (EPA) published a final rule effective August 2, 2010 tailoring the applicability criteria that detennine which stationary sources and modification projects become subject to pennitting requirements for GHG emissions under the PSD and title V programs ofthe Clean Air Act (CAA).
As Palt ofthe final rulemaking, EPA requested that states submit informatIon to the appropriate EPA Regional Administrator by August 2, 2010 so that it may determine whether it is still necessary to finalize ally proposed limited approvals for any State Implementation Plan (SIP)-approved PSD and part 70 title V state programs. In this letter, EPA requested tlmt states explain whether they will apply the meaning ofthe term "subject to regulation" established by EPA in this action .in implementing both their PSD and title V permitting progralllS, and if so, whether the state intends to do so without undertaking a regulatory or legislative process. If a state must revise its statutes or regulations to implement this rule, EPA asked that states provide an estimate oftllC time to adopt final rules in its letter to the Regional Administrator. The purpose of tllis letter is to address the questions posed by EPA as requested in the final rulemaking.
New Hampshire currently has SIP-approved PSD and title V programs. With a few exceptions (such as public participation requirements), the New Halnpshire PSD programlmge1y incorporates by reference EPA's PSD program requirements (contained in 40 CFR 52.21) that were in place at the time the New Hampshire PSD program was approved in 2002 (see October 28,2002 Vol. 67,FR 65710, Approval and Prollluigation o.f Air Quality Implementation Plans; New Hampshire; Preventian of Significant Deterioration (PSD) of Air Quality Permit Requirements). Aside fl'om where the phrase is contained in the definition of "Best Available Control Technology" in New Hampshire Administrative Rule Env-A 101.3 l, New Hampshire does not use the tenn "subject to regulation" in its state mles for the PSD progralll; however, the New Hampshire PSD program referenccs sections of 40.CFR 52.21 that use the term "subject to regulation". The situation is similar for New Hampshire's title V program in that it does not use P.O. Box 95, 29 Hazen Drive, Concord, New Hampshire 03302-0095 Telephone: (603) 271-1370 Fax: (603) 271-1381 TDD Access Relav NH 1-800-735-2964 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 67- -----------------------------

NHDES lJuplemenlaf;On ofPSD and title V for Greenhouse Gases July 30,2010 Page 2

the term "subject to rcgulation" in the state rules but the program incorporates sections of the EPA's title V regulations that include this term. The New Hampshire Department ofEnvironmental Services, Air Resources Division (Nl-IDES) has reviewcd the discussion provided by EPA on its interpretation of the term "subject to regulation" in the recent Interpretive Memo notice (75FR 17004, April 2, 2010). In this notice, EPA reiterated its longstanding interpretation that a pollutant, such as a OHO, is "subject to regulation" when it is subject to a CAA requirement establishing actual control of emissions. 1n.the context of GHG permitting under the PSD and title V programs, this means that the requirements ofthe final rnle for OHOswouLd not go into effect unEl January 2, 2011. NHDES concurs with EPA's interpretation ofthe term "subject to regulation" and intends to implement GHO pemlitting under PSD and title V beginning on January 2, 201 I. Notwithstanding the above, NI-IDES detennined that it is necessary to make changes to its state rules to clarify the thresholds for permitting GHOs. Currently, the PSD major source threshold is either 100 or 250 tons per year (tpy), depending on the source category. For title V, the major source threshold is 100 tpy. FU11hermore, for majOT modifications lmder the PSD program, unless a significant increase threshold is established for a specific regulated pollutant, any increase in GHG emissions wonld trigger the major modification requirements under PSD. As EPA noted in the final rule for GHGs, ifit applied the current statutory PSD and title V applicability thresholds literally to sources of GHO emissions, it would bring tens ofthousauds of small sources and modifications into the PSD program each year, and millions of small sources into the title V progranl. Unless the state 1'lllesare modified to establish separate thresholds for CJHOs, NHDES would not be able to effectively administer the SIP-approved PSD and titleV programs. In order to address the above concel1lS, NHDES plans to establish new definitions for "carbon dioxide equivalent emissions" (C02e) and "greenhouse gases" in El1\'-A 101,**D~fi/1i[joJ'ls.** These definitions will be essentially identical to the definitions established by EPA in itsJpne 3,2010fin'llruleforOHGs. In addition, NHDES is proposing changes to the definitions of"major source", "nl'aJor stationary SOll1'Ce", and "significant" where they are cunently defined inEnv-A 101 and Env-A 600 ofthe state rules. Specifically, NHDES is revising thesc definitions to clarify that, for plll1JoseS of GI-IO permitting, the major source threshold for PSD and title V is 100,000 tpy C02e and the major modification threshold under the PSD program is a net emissions increase of75,000 tpy C02e. NHDES is confident tl1at these changes will in place by the January 2, 2011 date for implementation of GHG permitting in New Hampshire. NHDES has initiated the required l'ulemakingprocess and expects to complete the process in December 20 I 0, \vith an efTedive date ofJanuary 2, 20 I I for these nile changes. A detailed breakdown ofthe anticipated rulemaking schedule is provided below. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 68NHDES Implementation qf PSD and title V foJ' Greenhouse Gases Ju(1' 30,2010 Page 3

.. ·RcQniredStateRnlemakingAction· i
··.... · ., •• ,c·;',Antici!mtedComllletioIl1late· Intemal legal review July 2010

-- Presentation ofproposed rules to NH Air Augnst 16, 20 10 Resources Council (NHARC)

- initiates a 15- dayrevicw period by NHARC Filing of Fiscal Impact Statement Request Septcmber 1,2010 ':

### ,

- ,

. Filing ofRulemakin a Notice September 10, 20 10

Publication ofRulemaking Notice September 17, 2010

- Public hearing. on proposed rules October 22,2010 Close ofpublic comment period November 1, 2010 Final proposed rule filed December 2, 2010 Final approval by Joint Legislative Committee December 16, 2010 on Administrative Rules (with January 2, 2011 effective date)

. I
NHDES believes that the above discussion and proposed actions satisfy EPA's-, information request as contained in its June 3, 2010 final rule. We look forward to working with yom staffin the coming months on this important issue. Ifyou or your staffhas any questions regarding the issues raised in this letter, please contact Gary Milbury, Air Petruit Programs Manager, at 603-271-2630 or via email at gary.milbmWGJ,des.nh.gov. Sincerely,

# ;V4?/~ Robelt R. Scott Director Air Resources Division lTs/gdm

cc: D. Dahl, EPA Region J 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 69

# Exhibit 1 3 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 70

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
SOUTHEASTERN LEGAL FOUNDATION, ) Case No. 10-1131 FOUNDATION, ET AL., ) ) (Consolidated with Nos. Petitioners, ) 1132, 1145, 1147-1148, ) 1199-1203, 1205-1213, v. ) 1215-1216, 1218-1222; ) Pending 10-1073, 1083, 1099, UNITED STATES ENVIRONMENTAL ) 1109-1110, 1114-111 5, 1118- PROTECTION AGENCY, ) 1120, 1122-1129) ) Respondent. ) ) ___________________________________________ )

DECLARATION OF WILLIAM O’SULLIVAN I, William O’Sullivan, declare as follows under penalty of perjury:

1. I am Director of the Division of Air Quality of theState of New Jersey (“State”), Department of Environmental Protection (“NJDEP”). I have managerial responsibility over the State’s air pollution control program in permitting, rulemaking and administration. I am also an active member of various national and regional organizations of air pollution control officials including the National Association of Clean Air Agencies (“NACAA”), where I co-chair the New Source Review committee. 2. I am familiar with the final rule “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” promulgated by the United States Environmental Protection Agency (“USEPA”) and published in the Federal Register on June 3, 2010 (“Tailoring Rule”). 75 Fed. Reg. 31,514. I servedon USEPA’s Greenhouse Gas BACT Workgroup which provided advice to the USEPA on determining Best Available Control Technology (“BACT”) for greenhouse gases if emission increases exceed the triggers in the Final Rule. 3. By letter dated December 23, 2009, on behalf of theNJDEP, I submitted comments to the USEPA’s Prevention of Significant Deterioration andTitle V Greenhouse Gas Tailoring Proposed Rule (“Proposed Rule”). In its comment letter, attached hereto as Exhibit A, NJDEP stated that “[b]ased on administrative necessity, EPA’s final rule on GHG tailoring should provide at least 2 years for states to revise statutes and rules.” See 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 71Exhibit A at 4. This was before USEPA issued the "subject to regulation" interpretation for implementation ofthe Tailoring Rule.
4. Based on EPA's Tailoring Rule, NJDEP determined that the minimum 2-year period recommended in NJDEP's comment was not necessary for New Jersey because our statutes and rules reference the federal rules. NJDEP's determination was based on the USEPA's final definition of "subject to regulation." As stated in its letter to the USEPA in response to the USEPA's request for information in the Tailoring Rule, which letter is attached hereto as Exhibit B, NJDEP advised the USEPA that it would apply the meaning of "subject to regulation" established by the Tailoring Rule. NJDEP further advised that, for the reasons set forth in its letter, it did not need to undertake a regulatory or legislative process to implement the Tailoring Rule. NJDEP's position was based on its review of current statutory and regulatory authority, which NJDEP determined authorized New Jersey to implement EPA's meaning of "subject to regulation." 

### 5. Because the first step ofthe Tailoring Rule applies Prevention of Significant Deterioration ("PSD") and Title V requirements to sources' greenhouse gas ("GHG") emissions only ifthe sources are subject to PSD anyway due to their non-GHG pollutants, New Jersey will not have to issue any additional permits between January 2,2011 and July 2,2011 because ofthe Tailoring Rule. NJDEP estimates that two (2) PSD applications, which are likely to be pending as ofJanuary 2,2011, would be required to include a GHG BACT evaluation, which is not expected to be a major workload for either application. 

### In addition to these 2 pending applications, there could be a few more new. PSD applications per year that could also require the BACT evaluation for GHG; GHG BACT evaluation would primarily focus on energy efficiency, which is already part ofthe PSD BACT evaluation for other air pollutants.
6. Based on the permitting thresholdsofthe Tailoring Rule, NJDEP estimates that after July 2,2011, when the second step ofthe Tailoring Rule is phased in, approximately seven (7) landfill facilities in New Jersey will be required to obtain permits under Title V. This involves applications for operating permits to be submitted within one (1) year and NJDEP actions on those applications within another eighteen (18) months. NJDEP already has experience issuing operating permits for several other landfills, and the 7 new operating permits would likely be similar to those.
I declare under penalty ofperjury under the laws ofthe United States that the foregoing is

true and correct. 

### Executed in Trenton, New Jersey on October 25, 20

# L

William O'Sullivan 2 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 72Division of Air Quality PO Box 027 Trenton NJ 08625

(609) 984-1484 

### December 23, 2009 Lisa P. Jackson Administrator U. S. Environmental Protection Agency Mail Code 2822T 1200 Pennsylvania Avenue NW Washington, D.C. 20460 REFERENCE: Proposed Greenhouse Gases (GHG) Tailoring Rule Prevention of Significant Deterioration (PSD) and Title V Requirements Docket ID: EPA-HQ-OAR-2009-0517 

### Dear Administrator Jackson: The New Jersey Department of Environmental Protection (NJDEP) supports USEPA actions to regulate greenhouse gases (GHGs) in a practicaland common sense manner. NJDEP provides the following comments on the Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Proposed Rule (Proposed GHG Tailoring Rule), including implementation of the proposed permit thresholds in New Jersey. 1. Thresholds: a. CO2 

### and Methane At a 25,000 tons per year (TPY) threshold, mystaff estimates thatapproximately 200 existing New Jersey facilities would be major for CO2

### or methane. This compares with 300 existing major facilities for the criteria pollutants. Of the 200 which would be major for these GHGs, about 150 are titleV major facilities at this time. Adding GHG conditions to 150 existing operating permits is manageable if agencies are allowed to phase in implementation or general permit conditions are used. Issuing new Title V permits to the estimated 50 additional title V facilities would be a substantial administrative and regulated task. Because New Jersey has a combined operating and pre-construction permit program, once a facility is major for GHG, all non deminimis sources at the facility are also included in the title V permit, rather than in minor facility permits. Hence, the workload for these 50 facilities is considerably greater than just adding GHG permit conditionsto an existing operating permit. Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 73

### 2 Note that New Jersey currently has a 25 TPY major source threshold for nitrogen oxides, which is lower than in most states. Hence, our incremental workload for new GHG triggered operating permits is less than for states with a 100 TPY NOx threshold. Of the 50 additional major f acilities currently without operating permits, about 20 are landfills, which would need operating permits based on CO2

### equivalent methane emissions. Our experience is that applying the operating permit program to landfills is time consuming and uncertain, primarily because of common control issues with associated energy generation companies. EPA should clarify and streamline the common control determination process for landfills associated with landfill gas energy production facilities, with the goal of encouraging more methane gas collection and combustion for beneficial use. b. Other four GHGs The above estimates of title 5 workload do not include the four other GHGs (other than CO2 or methane). There is considerable uncertainty concerning emissions from facilities which only emit highly warming GHG from leaking equipment. A threshold expressed as TPY carbon dioxide equivalent (CO2e) makes most environmental sense. Refining the threshold, by adding a 100 or 250 TPY metric that is mass-based, as discussed by EPA on page 55330, would not capture releases of nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride with global warming impacts far exceeding a 25,000 TPY CO2e threshold. For example, the hydrofluorocarbon R-507A (a common replacement for HCFC-22 in industrial refrigeration systems, with a global warming potential of 3,985) could be released by a source at a level of almost 1 million TPY in terms of CO2

### e and would not trigger PSD/Title V if a 250 TPY mass trigger is used. Such sources would benefit from Best Available Control Technology (BACT), which should include at a minimum, a Leak Detection and Repair (LDAR) program similar to the requirements for ozone depleting substances in 40 CFR Part 82. This requirement would help fill a gap in current Federal regulations for the largest sources of hydrofluorocarbons and other greenhouse gases with high global warming potential. Alternatively, a LDAR rule could be developed for these highly warming gases, which would apply to both existing and new facilities, reducing the need to apply BACT below 250 TPY. While it is difficult to estimate the number of facilities with releases of these four highly warming gases above 25,000 TPY CO2e, data submitted under New Jersey’s Worker and Community Right to Know Regulations (N.J.A.C. 7: 1G) indicate that approximately ten facilities have refrigeration systems using large quantities of HCFC-22 (above 10 tons). These facilities will eventually need to stop using HCFC22 as the phase out of ozone depleting substances under Title VI of the Clean Air Act is fully implemented. They are likely to use a greenhouse gas such as R-507A as a replacement. When they make this change, releases of R-507A could potentially exceed 25,000 TPY CO2e, depending on leak rates from the system. We do not know the numbers of facilities currently using hydrofluorocarbons since there are no reporting requirements for these gases. Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 74

### 3 c. PSD significant modification threshold For PSD applicability for modification projects at major facilities, NJDEP recommends that 25,000 TPY CO2e emission increase be used as a threshold for the next 5 years. 10,000 TPY would affect the addition of new boilers in the range of 20 million BTUs per hour, substantially increasing the PSD workload. 2. Best Available Control Technology (BACT) for GHG: EPA should provide practical guidance, including examples of acceptable BACT outcomes, in addition to the GHG specific guidance on the BACT process. Higher efficiencies for new equipment would be a desirable benefit of BACT. EPA should focus on opportunities for energy efficiency in developing BACT guidance for greenhouse gases. Energy efficiency can bea considered factor, similar to alternative production processes and pollution prevention measures that are currently included in the BACT review. Since BACT cannot be less stringent than New Source Performance Standards under section 111 of the CAA, opportunities for process improvement and energy efficiency, such as those discussed by EPA in Section B New Source Performance Standards of the “Technical Support Document for the Advanced Notice of Proposed Rulemaking for Greenhouse Gases; Stationary Sources, Section VII,” are appropriate to consider. Any presumptive BACT guidance for at least the first 5 years with the higher applicability thresholds should be rebuttable up or down by the applicant, agency or public. Non binding presumptive GHG BACT would initially be useful to help focus the BACT top down process, yet provide room to learn from case by case BACT decisions. For a phase 2 program in 5 years with lower thresholds, use of general operating permits (GOP) for smaller GHG sources might include BACT that would not be rebuttable if the GOP were selected for use by the applicant.For minor sources, New Jersey publishes State of the Art (SOTA) manuals which provide presumptive emission limits for the new and modified minor equipment. An applicant can use the SOTA limits, instead of doing a case by case technology evaluation. This process has succeeded in making our permit process more effective and efficient for many smaller sources.

3. Permit Phase in and Efficiency

a. The final rule should grandfather from GHG PSD requirements any application pending with the state agency which is “administratively complete” by the effective date of the rule. b. EPA should phase in title V requirements over the 5 year renewal process to even out workload over the long term. This avoids front-loading the system and having a slug of GHG related applications every 5 years.

c. EPA should provide equipment specific permitting templates as models for monitoring, recordkeeping and reporting requirements, especially for the federal GHG reporting rule. These EPA developed templates could be used by states when the existing title V permits are modified or renewed. The use of templates Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 75

### 4 would reduce some of the administrative burden, but would notreduce the public comment process, unless the templates are transformed into general permits (GPs) or general operating permits (GOPs), as discussed in 3.d. below. d. EPA should encourage “general permits” (GPs) and general operating permits (GOPs) as alternatives for common sources of GHG. EPA should develop templates for GHG GPs for synthetic minor purposes and GOPs for major facilities. NJDEP has been effectively issuing GPs online for 14 minor facility source categories since 1998, with over 20,000 such permitsissued to date. New Jersey is in a process of expanding the concept of GPs into the operating permit program, consistent with EPA’s rules for General Operating Permits. The use of GOPs would provide for a single public comment on the draft GOP, rather than public comment on every operating permit modification. This would be a significant workload reduction. 4. Funding the added GHG Workload: The final rule should include presumptive emission fees for CO2

### which are lower than fees for the criteria pollutants. Decreased f ee rates are justified because source emissions of CO2 are typically 100 to 1000 times higher than the emissions of criteria pollutants from the same source. A prorated GHG emission fee would be 2.5 to 25 cents per ton, as compared to the criteria pollutant presum ptive fee of 25 dollars per ton. Also, the operating permit workload for a 25,000 TPY GHG ma jor facility is expected to be similar to the workload for a 100 TPY NOx operating permit, which would equate to a prorated CO2

### emission fee of about 10 centsper ton. States could adopt lower or higher fees based on experience and workload analysis. A presumptive fee starts the states on a level playing field. 5. Timing of Revision to the State Laws and Rules: New Jersey rules (N.J.A.C. 7:27-22) currently exclude GHG from major facility applicability. The state laws also would need revision for a new operating permit threshold. Based on administrative necessity, EPA’s final rule on GHG tailoring should provide at least 2 years for states to revise statutes and rules.
If you have any questions regarding these comments, please feel free to contact me at (609) 984-1484. Sincerely yours,

William O’Sullivan, P.E. Director Division of Air Quality Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 76

### 5 Copy to:
Nancy Wittenberg, Assistant Commissioner, Environmental Regulation Jeanne Herb, Director, Policy, Planning and Science John Preczewski, Assistant Director, Division of Air Quality Marjorie Kaplan, Manager, Office of Climate Change and Energy Steve Anderson, Office of Climate Change Ketan Bhandutia, Bureau of Permits

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 77CHRIS CHRISTIE Governor

KIM GUADAGNO Lt. Governor DEPARTMENT OF ENVIRONMENTAL PROTECTION P.O. Box 402 Trenton, NJ 08625-0402 TEL: # (609) 292-2885 FAX # (609) 292-7695

July 30, 2010 BOB MARTIN Commissioner

Judith A. Enck Regional Administrator United States Environmental Protection Agency Region 2 290 Broadway-26th Floor New York, NY 10007-1866 Re: Greenhouse Gas Tailoring Rule published in the June 3, 2010 Federal Register, 75 Fed. Reg. 31,514 Implementation ofthe Title V and PSD Requirements in New Jersey Dear Judith: Please accept this letter as New Jersey's response to EPA's request for information regarding application of the meaning of "subject to regnlation" set forth in the federal Greenhouse Gas (GHG) Tailoring rule (Tailoring Rule). Please be advised that New Jersey will apply the meaning of "subject to regnlation" established by the Tailoring Rille, and that for the reasons set forth below, New Jersey presently does not intend to undertake a regnlatory or legislative process to implement the Tailoring Rule. The Title V air permit requirements in New Jersey are implemented through the New Jersey Air Pollution Control Act (26:2C-l et seq.) and the New Jersey Administrative Code (N.J.A.C. 7:27-22). The New Jersey Air Pollution Control Act (26:2C-l et seq.) is available at http://www.nj.gov/dep/rules/rules/njsa26 2c.html. The New Jersey Administrative Code N.J.A.C. 7:27-22 is available at http://www.state.nj.us/dep/agrnlrules.htrnl. The new Title V requirements of the GHG Tailoring Rule can be implemented in New Jersey using the existing statne and rules. The New Jersey statne 26:2C-2 contains a definition of "Major facility" which includes the pp..rase "afacility that constiP.ltes a <major source' as that term is defined by the EPA in Y1.lles and regulations adopted pursuant to thefederal Clean AirAct at 40 CFR 70.2 or any subsequent amendments thereto". The definition of "major facility" in the New Jersey Administrative Code N.J.A.C. 7:27-22.1 includes a similar phrase. The EPA defines a "major source" as that which

New Jersey is an Equal Opportunity Employer. Printed on Recycled Paper and Recyclable 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 78"is defined in section 302 of the Clean Air Act and directly emits or has the potential to emit

... any air pollutant subject to regulation." "Subject to regulation" is further defined to exclude GHGs, except as specifically provided. Therefore, New Jersey's definition of a "major facility" includes the EPA meaning of "subject to regulation" codified in 40 CFR 70.2. Therefore, revisions to N.J.S.A. 26:2C-2 and N.J.A.C. 7:27-22 are not required at this time. New Jersey will implement new PSD requirements for GHG emissions in New Jersey using the federal rules at 40 CFR 52.21 since New Jersey is a PSD delegated state. In sum, New Jersey will not be undertaking any regulatory or legislative process to implement Title V and PSD air pennit requirements for GHG emissions in New Jersey at this time because current statutory and regulatory authority allows New Jersey to implement EPA's meaning of "subject to regulation." In the future, we may add the EPA major facility threshold (100,000 TPY) to our statute and rules as a matter of clarification in the listings of the major facility thresholds for other air contaminants. If you have any questions regarding this submittal, please feel free to contact Mr. William O'Sullivan, Director, Division ofAir Quality at (609) 984-1484. Sincerely yours,

# Ad~ !( Bob Martin 

# If Commissioner

c: Nancy Wittenberg, Assistant Commissioner William O'Sullivan, Director DAQ John Preczewski, Assistant Director, DAQ John Renella, DAG Kevin Auerbacher, DAG 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 79

# Exhibit 14 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 80

### STATE OF NEW MEXICO IN THE MAITER OF THE ENVIRONMENTAL PROTECTION AGENCY'S RULES TO REGULATE GREENHOUSE GASES

AFFIDAVIT OF JIM NORTON
1. The New Mexico Environmental Improvement Board (Board) is scheduled to hold a hearing the week ofNovember 

### 8, 2010 on amendments to state regulations that will enable the implementation ofthe Tailoring Rule. A petition was filed with the Board on July 30, 2010 to amend 20.2.70 NMAC- 

### Operating Permits and 20.2.74- NMAC- 

### Permits- Prevention of Significant Deterioration. 2. Once the proposed amendments are adopted, the New Mexico Environment Department (Department) will be ready to implement the proposed roles by Jan. 2, 2011. 

### 3. The Department is working cooperatively with EPA to implement the Tailoring Rule as soon as possible and does not anticipate any halt to, or significant delays of, permitting come Jan. 2,2011.
4. The Department has adequate resources to implement the Tailoring Rille come Jan. 2, 2011. 5. The burden to the state would be much greater without the Tailoring Rule because we could be obligated to permit sources below the Tailoring Rule threshold.
6. New Mexico has been working to mitigate greenhouse gas emissions in the state since 2005 and is supportive ofEPA's efforts to regulation greenhouse gas emissions from stationary sources. The Tailoring Rule would complement proposed rules by the Department to participate in a regional greenhouse gas cap-and-trade program. I declare under penalty ofperjury that the foregoing is true and correct. Executed on the 

## /5 th day of October, 2010, at Santa Fe, New Mexico.

o on, rronmental**Protecm:m~**

exico Environment Department 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 81

### Subscribed and sworn before me thisL,2'th day ofOctober, 2010 by Jim 

### Norton.

OFFICIAL SEAL 

### Catherine Velazquez NOTARY PUBUC STATE OF NEW MEXICO Mil Comml

.. lon Expire,:**/tfl~tP$"-** II 

### My commission expires: IJ () 5 -1/ 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 82

# Exhibit 1 5 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 83

### UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

SOUTHEASTERN LEGAL FOUNDATION, ) Case No. 10-1131 FOUNDATION, ET AL., ) ) (Consolidated with Nos. Petitioners, ) 1132, 1145, 1147-1148, ) 1199-1203, 1205-1213, v. ) 1215-1216, 1218-1222; ) Pending 10-1073, 1083, 1099, UNITED STATES ENVIRONMENTAL ) 1109-1110, 1114-1115, 1118- PROTECTION AGENCY, ) 1120, 1122-1129) ) Respondent. ) )

_____________________________________)
DECLARATION OF DAVID J. SHAW IN OPPOSITION TO MOTIONS FOR A STAY OF EPA’S GREENHOUSE GAS TAILORING RULE I, DAVID J. SHAW, declare as follows:

1. I am currently employed by the New York State Department of Environmental Conservation (DEC) as the Director of DEC’s Division of Air Resources. I have been employed by DEC for over 31 years, and have served as Director of DEC’s Division of Air Resources for over 6 years. 2. In my capacity as Director of DEC’s Division of Air Resources, I am directly responsible for overseeing DEC’s ef forts to protect the health and welfare of the citizens of New York State by working to maintain and improve air quality throughout the State. 3. My responsibilities as Director of DEC’ s Division of Air Resources include responding to the United States Environmental Protection Agency’s (EPA’s) recent actions regarding the regulation of greenhouse gases (GHGs) under the Clean Air Act (CAA). 1 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 84

### 4. Earlier this year, EPA adopted a rulethat is commonly known as the “GHG Tailoring Rule.” Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514 (June 3, 2010). In the GHG Tailoring Rule, EPA requested that each permitting authority, including DEC, provide a letter to EPA outlining its response to the GHG Tailoring Rule, commonly referred to as the “60 Day Letter.” By letter dated August 11, 2010, DEC Commissioner Alexander B. Grannis notified EPA of the DEC’ s plan for responding to the GHG Tailoring Rule. SeeLetter to EPA Regional Administrator Judith Enck, Aug. 11, 2010, attached as Exhibit A. 5. EPA recently proposed approval of revisionsto DEC’s State Implementation Plan (SIP). Approval and Promulgation ofImplementation Plans; New York Prevention of Significant Deterioration of Air Quality and Nonattainment New Source Review, 75 Fed. Reg. 43892 (July 27, 2010). Final approval by EPA of DEC’s SIP revisions will allow DEC to implement and administer the Prevention of Significant Deterioration (PSD) program in New York. 6. New York has a federally-approved Part 70 Title V Operating Permit program, which is codified at 6 NYCRR Subpart 201-6. Pursuant to that program, DEC reviews and issues Title V operating permits tomajor stationary sources. 7. In its 60 Day Letter to EPA, DEC expressed its general support for the approach taken by EPA in the GHG Tailoring Rule, as well as DEC’s intent and ability to follow such approach. DEC stated that there was nothing to indicate that DEC could not apply EPA’s definition of the term “subject to regulation” in the GHG Tailoring Ruleand, therefore, DEC intends to consider GHGs as “subject to regulation” as of January 2, 2011 as a matter of New York State law. DEC also stated that it has initiated a rulemaking process to implement EPA’s GHG tailoring approach for both PSD and Title V purposes.

2 Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 85

### 3 8. The National Association of Clean Air Agencies (NACAA), which represents air pollution control agencies like DEC in 53 states and territories and over 165 major metropolitan areas across the United States, recently reviewed the 60 Day Letters to EPA submitted by DEC and other permitting authorities, and provided a summary of the responses. SeeNACAA, States Moving Full Speed Ahead on Greenhouse Gas Permitting, September 15, 2010, attached as Exhibit B. NACAA’s summary of the 60 Day Letters estimated that a majority of states are able and willing to implement EPA’s GHG Tailoring Rule. 9. The GHG Tailoring Rule phases in PSD and Title V permitting requirements for GHG emissions from stationary sources at initially higher thresholds than under the statutory CAA thresholds. 10. Without the GHG Tailoring Rule, EPA’s PSD and Title V permitting requirements would apply, as of January 2, 2011, at the CAA statutory applicability thresholds of 100 or 250 tons per year. This would result in an overwhelming administrative burden for DEC’s Division of Air Resources, which could in turn result in severe impairment or delay in the functioning of New York State’s permitting programs under the CAA. 11. EPA’s GHG Tailoring Rule therefore servesto significantly reduce the amount of resources necessary for DEC’s Division of Air Resources to implement EPA’s actions regarding the regulation of GHGs under the CAA. Thisis because the GHG Tailoring Rule reduces the amount of permits that would otherwise need to be issued by DEC under the CAA statutory applicability thresholds. 12. Through Governor Paterson’s Executive Order No. 24 and otherwise, New York State has recognized that it is in the public interest to reduce GHG emissions. In particular, New

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 86York State has_ recognized that a reduction of GHG emissions will help to reduce the risk of negative impacts from climate change in the State.

I declare under penalty ofperjury under the laws ofthe United States that the foregoing is
true and correct. Executed on 

## (/c7t,'

## (~ 1-

COLLEEN A. McCARTHY Notary Public, State of New York Qualified in Albany County No. 02MC5046480 -. 

### "3**CommlsSlon~pires** July / 

# l' ;:;;0 I

\ , 20 10, at**----L----''----'=-------;-~** ___+

4 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 87DAVID A. PATERSON GOVERNOR STATE Of NEW YORK DEPARTMENT Of ENVIRONMENTAL CONSERVATION AlBANY, NEW YORK 12233-1010 

## AUG 1 

## t Z010 ALEXANOER B. GRANNIS COMMISSIONER

Ms. Judith A. Enck Regional Administrator U.S. Environmental Protection Agency

- Rcgion 2 290 Broadway, 26th Floor 

### New York, NY 10007-1866
Dear Ms, 

# 0**O~.1.1lj** This is in respokpA'S Final Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule. 75 FR 31514, June 3, 20 I0, providing infonnation regarding New York State's intention and ability to incorporate EPA's "subject to regulation" approach under the Final Greenhouse Gas Tailoring Rule. It is our understanding that EPA is seeking this infonnation to dctennine whether it is still necessary to finalize the previously proposed limited approvals for SIP-approved PSD and Part 70 Title V state programs.

ew York is one of the many states that 

### will be significantly impacted by the regulation of greenhouse gases (GHGs) when the GHG Mobile Source Rule takes effect on January 2, 2011. According to EPA's interpretation, this is the date that GHGs will become "subject to regulation" under the Clean Air Act (CAA). Once GHGs are "subject to regulation" under the CAA, Ncw York's cxisting regulations require DEC to include GHG emissions in its PSD and Title V permitting programs. No rulcmaking or other administrative action by DEC is required for this aspect of EPA's overall approach. This may not be true, however, for the tailoring aspect of EPA's approach. Currently-effective New York State regulations may establish major source thresholds for GHGs equivalent to the CAA statutory thresholds. Thus, irrespective of whether GHG thresholds arc tailored under the federal rule, a vast number of small GHG emission sources in New York may become subject to stale PSD and Title V requirements as a matter of state law. This is because the relevant regulatory language and numerical thresholds under New York's PSO (6 NYCRR Part 231) and Title V (6 NYCRR Part 20 I) programs largely track the federal regulations and the CAA statutory text. As EPA recob'l1izl.-'d, the massive number of smaller sources that would be required to comply with state PSD and the Tille V program requirements would undoubtedly inundate and overwhelm states' pennitting authorities. Given that this would likely result in significant processing delays and a substantial burden on the pennitting system, we would support EPA's action to lessen the administrative burden on pennitting authorities and assist states in meeting their obligations under the CAA.

# 4~ears of stewardship 1970-1010



### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 882.

, As you are aware, DEC is currently awaiting EPA's final approval of its Part 231 SIP, which will

allow us to administer the PSD program in New York. It is our understanding that EPA is in the process of finalizing that approval, so this Ictter addresses the relevant PSD-rclated questions in anticipation ofhaving a SIP-approved PSD program in the near future. The following are DEC's responses to EPA's specific requests for infonnation.
For PSD and Title V purposes, the state should explain whether it will apply EPA's meaning of Ihe term "subject to regulation" and if so, whether the state intends to incorporate that meaning of the term through interpretation, and without undertaking a regulatory or legislative process. The leon "subject to regulation" is not defined in New York State law, and as a general mancr, there is nothing to indicate DEC could not apply EPA's definition. Although the phrase is not specifically defined in New York State law, DEC has generally followed EPA's approach regarding the definition of the tenn "subject to regulation." Therefore, we intend to consider GHGs "subject to regulation" as ofJanuary 2, 2011.
We support EPA's "subject to regulation" approach as set forth in the Final GHG Tailoring Rule, because it would lessen the substantial administrative burden created by the regulation orGHOs under New York's PSD and Title V programs, and help New York meet its obligations under the CAA. As such, DEC intends to apply EPA's definition ofthe tcnn "subject to regulation" as set forth in the Final GHG Tailoring Rule as a matter of ew York State law. While DEC will interpret "subject to regulation" in the same manner as EPA, we intend to undertake a rulemaking process in order to implement EPA's GHG tailoring approach for both PSD and Tille V purposes. For Title V purposes, shates should explain whether they will adopt an interpretation of the terms "major source" or any of its component terms

- "a major stationary source," "any air pollutant," or "subject to regulation," or the numerical thresholds

- that is consistent with EPA's regulatory interpretation of these terms as codified at 40 CFR 70.2, and whether the state intends to adopt the interpretation without undertaking a regulatory or legislative process. The tenns "major stationary source," "major source" and "major facility" arc defined under New York State's Title V regulations [Subparts 201-2.1 (b )(21 )(i)]. Although we have not explicitly defined "major source" and its component terms, or the tenn "any air pollutant or air contaminant regulated under the CAA," under New York State's Title V program to have the equivalent meaning to "subject to regulation," the provisions and tenns therein have, morc or less, tracked the federal regulations. In addition, there is nothing to indicate that the tenns under New York State's Title V program would exclude EPA's interpretation. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 89

### 3.

As with PSD, we support EPA's approach as set forth in the Final GHG Tailoring Rule relating to EPA's regulatory interpretation oflhe relevant tcnn "major source" and its component teons, since it would significantly lessen the otherwise substantial administrative burden likely to result from the regulation ofGHOs under the Tille V program and assist New York in confplying with its obligations under the CAA. Just as with PSD, we intend 10 apply EPA's definition and interpretation [or Tille V purposes as a matter 

# or New York State law. Moreover, while we will interpret its Title V program as tracking EPA requirements, we intend to undertake a fulemaking process in order to implement EPA's approach. If a state must revise its statutes or regulations to implement this rule, we ask that it provide an estimate of the time to adopt final rules.
New York State law requires that changes in or additions to federal regulations be adopted through a fonnal State rulcmaking process. New York State's rulemaking process is lengthy, often taking more than a year. We have initiated this rulcmaking and will seck to finish in less than a year. Please call David Shaw, Director ofour Division ofAir Resources, al (518) 402-8452 if you have any questions.

## Since~

Alexander B. Grannis

c: David Shaw



### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 901



## States Moving Full Speed Ahead on Greenhouse Gas Pe**rmitting**

National Association of Clean Air Agencies

September 15, 2010 The vast majority of states are moving full speed ahead to begin permitting emissions of greenhouse gases (GHGs) under the Clean Air Act, and expect to complete revisions of state and/or loca l rules by, or within a few months after, January 2, 2011 – the date that GHG permitting under the Act’s Prevention of Significant Deterioration (PSD) and Title V programs begins. Nearly 80% of states have indicated that they will be ready to permit the largest sources of GHGs by the time permitting requirements take effect. The U.S. Environmental Protection Agency (EPA) issued rules earlier this year regulating GHGs under the Clean Air Act, including rules that exempt smaller sources and subject only the largest GHG emitters to permit requirements. I n response to calls from the states for more time to revise state and local regulations to exempt smaller sources, the agency also delayed the commencement of GHG permitting until January 2, 201 1. In December 2009, pursuant to the Supreme Court’s2007 decision in Massachusetts v. EPA that GHGs are an air pollutant under the Clean Air Act, EPA determined that GHGs do indeed contribute to air pollution that endangers public health and welfare. 1Following on that finding, EPA and the U.S. Department of Transportation issued a final rule co ntrolling GHGs from new motor vehicles and engines on April 1, 2010. 2Once GHGs become subject to regulation under the Clean Air Act, permitting provisions under PSD and Title V are triggered, req uiring the implementation of control technologies to abate emissions of GHGs. In anticipation of this, EPA promulgated the final Johnson Memo Reconsideration 3in March 2010, which interpreted the phrase “subject to regulation” as occurring when an actual control requirement contained within a nationwide rule takes effect. Therefore, under the agency’s interpretation, once GHGs became subject to regulation with promulgation of the final lightduty vehicle rule, PSD and Title V permit requirements apply to GHGs as of January 2, 2011. The PSD and Title V Greenhouse Gas Tailoring Rule4(Tailoring Rule) was promulgated in June 2010 to address concerns regarding the crippling ad ministrative burden that would result from issuing millions of permits to sources emitting only very small amounts of GHGs. The Tailoring Rule raised the thresholds for GHG permitting to include only the largest sources and extended the onset of GHG permitting in order to give states time to revise their own rules to include the Tailoring Rule requirements and exempt smaller sources. Most states are moving forward with legislative and/or regulatory processes to incorporate the Tailoring Rule provisions.

1Endangerment and Cause or Contribution Findings fo r Greenhouse Gases under Section 202(a) of the Clea n Air Act, 74 Federal Register

66496 (December 15, 2009). 2Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Federal Register 25324 (May 7, 2010). 3Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs; Final Action on Reconsideration of Interp retation, 75 Federal Register 17004 (April 2, 2010). 475 Federal Register

31514 (June 3, 2010). 

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In the final Tailoring Rule, EPA asked states to send letters to the agency by August 2, 2010 with information regarding how the state intends to implement the Tailoring Rule. EPA asked each state to respond by indicating whether or not the state needs to undertake a regulatory or legislative process in order to incorporate the provisions of the Tailoring Rule, as well as the timeline for completing any such process. States were also asked to notify EPA if they do not have any authority to permit GHGs and, if not, to indicate whether or not they intend to revise their rules to include GHGs. The National Association of Clean Air Agencies (NACAA), the association of air pollution control agencies in 52 states and territories and over 165 metropolitan areas across the country, has reviewed and briefly summarized letters from all applicable states, as well as those from a number of local and territorial air pollution control agencies. NACAA’s analysis shows that the vast majority of states a re working quickly to prepare for GHG permitting and i ncorporate the provisions of the Tailoring Rule into applicable state and local rules and State Implementation Plans (SIPs) as soon as possible. Nearly 80% of states expect to have rules in place by January 2, 2011 or shortly thereafter. Of the minority of states that will not yet have rules in place by January 2,2011 or shortly thereafter, most are working to incorporate the provisions of the Tailoring Rule, but will be delayed due to state legislative and/or regulatory requirements. Below, NACAA provides a brief summary of each state’s response to the questions posed by EPA, and includes all letters submitted to EPA by states pursuant to the agency’s request in the final Tailoring Rule. The 57 letters summarized below, from 48 states and territories and 9 local air pollution control agencies, provide a snapshot of the implementation plans of the states as of August 2010. Many of these plans are subject to current regulatory and/or political processes. Three states – Nebraska, Nevada, and the District of Columbia – have not submitted Tailoring Rule letters to EPA as of September 2010, though neither Nevada nor the District of Col umbia currently has a SIP-approved PSD program. In California, local air pollution control agencies th roughout the state are responsible for stationary source permitting, and the PSD program in most of Californ ia is implemented by EPA under federal regulations.



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### State-By-State Summary

**AGENCY & DATE**  **SUMMARY O F**  **RESPONSES** Alabama July 31, 2010  Alabama has the authority to permit GHGs under both PSD andTitle V; no revisions need to be made for this purpose.  State PSD regulations need to be revised to be consistent with the Tailoring Rule thresholds.  The state plans to begin the rulemaking process to revise its PSD regulations by August 22, 2010. The revisions should be considered for adoption in December 2010, and, if approved, submitted to EPA i n January 2011. The state has requested parallel processing for this SI P revision. Title V regulations will be revised at a later date. Alaska August 2, 2010  Alaska needs to undertake a regulatory process in order to incorporate the provisions of the Tailoring Rule and comply with federal rules regarding GHG permitting.  The state has already initiated the rulemaking process, and anticipates that the regulations will be adopted and in effect by Ja nuary 2, 2011. Arizona August 27, 2010  Arizona does not have the authority to permit GHGs under its PSD and Title V programs. The state does not agree that its PSD program is inadequate because it does not apply to GHGs.  Completing the rulemaking and SIP approval process by January 2011 would be nearly impossible. Arkansas July 26, 2010  Arkansas does not currently have the authority to permit GHGs under state law.  State PSD and Title V regulations need to be revised to be consistent with the Tailoring Rule thresholds.  The state estimates that it will take 10-18 months to revise the regulations, and will not make the January 2, 2011 deadline. Colorado July 29, 2010  Colorado needs to revise its PSD and Title V regulations to incorporate the Tailoring Rule thresholds.  The state has begun the rulemaking process and hopes that regulatory changes will be complete by the end of November 2010. Regulatory changes then need to undergo legislative review, which is expected to conclude by winter or spring 2011. The state requests that EPAlimit approval of its PSD and delegated Title V program to match the GHG perm itting thresholds under the Tailoring Rule. Connecticut July 20, 2010  Connecticut does not currently have the authority to permit GHGs under its PSD or Title V programs.  The state intends to revise its regulations to incl ude GHGs for both programs, as well as to incorporate the Tailoring Rule thresholds for both its PSD and Title V programs.  The regulatory adoption process generally takes 14-20 months. The state will try to expedite the process, but expects regulatory revisions by late summer/early fall 2011. Delaware July 29, 2010  Delaware does have the authority to interpret subject to regulation for both its PSD and Title V programs.  However the state will also undertake rulemaking toexplicitly add the 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 934 Tailoring Rule thresholds to its regulations.  The state has begun the regulatory process, and anticipates finalizing the revised regulations by the end of 2010 with a compl iance date of January 2, 2011. Florida July 2, 2010  Florida does not have the authority to permit GHGs under either its PSD or Title V programs, and cannot automatically interpret subject to regulation.  The state needs to amend its regulations to incorporate GHGs into its permitting programs, but cannot at this time estimate how long this will take. Georgia August 2, 2010  Georgia intends to adopt EPA’s interpretation of subject toregulation for both its PSD and Title V programs, and will do so by undertaking a rulemaking process.  The state anticipates completing rulemaking for both PSD and Title V by January 1, 2011. Hawaii July 28, 2010  Hawaii currently has the authority to permit GHGs and can implement the Tailoring Rule thresholds under its delegated PSD program. The state also has the authority to permit GHGs under its Title V program.  Rule changes are required in order to apply the definition of subject to regulation for the state’s Title V program.  The state estimates that the Title V regulatory cha nges will be completed by the end of 2011. Idaho July 28, 2010  Idaho must undertake a regulatory/legislative process in order to incorporate GHGs as subject to regulation, as well as to incorporate the provisions of the Tailoring Rule.  The state expects to complete the process by late M arch/early April 2011. Illinois July 29, 2010  I llinois has the authority to permit GHGs consistentwith the Tailoring Rule provisions under its delegated PSD program.  The statute and regulations governing its Title V program need to be revised in order to incorporate the Tailoring Rule thresholds and update the fee structure. State regulations will also be revised to ensure that smaller sources do not require permits under state law.  The state anticipates that the Title V legislative revisions will be completed in spring or summer 2011, with regulatory revisions following shortly thereafter. Indiana July 23, 2010  I ndiana currently has the authority to permit GHGs under both its PSD and Title V programs, and intends to apply EPA’s definition of subject to regulation.  PSD and Title V regulations need to be revised in order to incorporate the Tailoring Rule thresholds.  The state plans to use emergency rulemaking as an i nterim measure to make the Tailoring Rule thresholds effective by January 2, 2011. A permanent, expedited rulemaking process is expected to be completed in March 2011. Iowa July 20, 2010  Iowa needs to undertake a rulemaking process in order to adopt the Tailoring Rule definition of subject to regulation for both its PSD and Title V programs.  The state plans to finish rule revisions and submitthese to EPA for inclusion in its SIP by the end of December 2010. 

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Kansas August 2, 2010  Kansas needs to revise its regulations in order to implement the Ta iloring Rule provision for both its PSD and Title V programs.  The state estimates that regulatory changes will becompleted by April 1, 2011. Kentucky July 27, 2010  Kentucky intends to amend current regulations to adopt the definition of subject to regulation for both its PSD and Title V programs.  The state anticipates finalizing regulatory changesand submitting SIP revisions to EPA by the beginning of December 2010. Louisiana August 2, 2010  Louisiana rules do not appear to prohibit permitting GHGs under its PSD and Title V programs.  The state intends to apply the meaning of subject to regulation consistent with the Johnson Memo Reconsideration without regulatory changes; however PSD and Title V regulations need to be revised in order to incorporate the Tailoring Rule thresholds.  If it undertakes fast track rulemaking, the state could have final rules by December 20, 2010, though the effective date could be delayed.  The state also needs to amend other state regulations in order to revise thresholds for small source exemptions; these revisions will not be final by January 2, 2011. Maine August 5, 2010  M aine has the authority to implement PSD and Title V permitting for GHGs

.  Certain regulatory changes need to be made in orderto incorporate the Tailoring Rule thresholds.  The state expects that regulatory changes will be adopted before January 2, 2011. Maryland August 2, 2010  M aryland intends to amend its regulations consistentwith the Tailoring Rule thresholds contained in the definition of subject to regulation for both its PSD and Title V programs. PSD regulations will also be amended to clarify that sources are subject to the Tailoring Rule provisions.  The state anticipates completing rulemaking by January 2, 2011. Massachusetts August 2, 2010  M assachusetts does not currently have a SIP

-approved PSD program.  GHGs are not currently a regulated pollutant under its Title V program. The state needs to undertake a rulemaking process in order to adopt the definition of subject to regulation and incorporatethe Tailoring Rule thresholds for its Title V program.  The goal is to provide regulatory language for publ ic review during the first half of 2011. Michigan July 27, 2010  M ichigan intends to interpret subject to regulation as defined in the Tailoring Rule; no rule changes are required to incorporate the Tailoring Rule requirements for its PSD program.  The state needs to undertake a rulemaking process i n order to amend its rules to incorporate the Tailoring Rule provisions under its Title V program.  The rulemaking process normally takes 12-18 months,and the state anticipates completing this process before July 1, 2012. Minnesota June 23, 2010  M innesota implements a delegated PSD program, and no changes are required to incorporate the Tailoring Rule provisions.  Title V rules need to be revised in order to incorporate the Tailoring Rule thresholds. Various rule requirements for state-on ly permits may also be 

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.  The state expects to initially use an expedited rulemaking process to complete regulatory changes for its Title V programby January 2, 2011. It will then need to undertake a traditional rulemaking process beginning in early 2011, and expects to have final rulemaking fi nished by mid/late 2012. Mississippi July 28, 2010  M ississippi needs to amend its regulations in order to i mplement the Tailoring Rule provisions for its PSD and Title V programs.  The state expects that the regulatory amendment process should be completed by January 2, 2011, pending public interest. Missouri July 27, 2010  M issouri needs to amend its regulations in order to incorporate the Tailoring Rule thresholds for its PSD and Title V programs.  The state is currently reviewing the final Tailoring Rule and state regulations to determine the necessary changes, and will then begin the rulemaking process. The process usually takes 12-18 months for permanent rules; the state may be able to propose emergency rulemaking, though rules would only then be effective for 180 days. Montana August 20, 2010  M ontana’s existing rules and regulations provide the framework for implementing its PSD and Title V programs consistent with the Tailoring Rule provisions. New Hampshire July 30, 2010  New Hampshire needs to undertake a rulemaking process in order to incorporate the Tailoring Rule thresholds for both its PSD and Title V programs.  The state has initiated a rulemaking process, and expects to complete it in December 2010, with an effective date of January 2,2011. New Jersey July 30, 2010  New Jersey implements a delegated PSD program.  For its Title V program, the state intends to applyEPA’s definition of subject to regulation, and does not need to undertake a regulatory or legislative process in order to do so.  In the future, the state may specifically add the 100,000 tpy threshold to the Title V major source definition as a matter of clarification. New Mexico June 24, 2010  New M exico needs to amend is PSD and Title V rules in order to incorporate the Tailoring Rule requirements.  The state intends to request a hearing in November 2010, and expects rule revisions to be effective by January 1, 2011. New York August 11, 2010  New York has the authority to permit GHGs under both its PSD and Title V programs.  Though the state is currently not PSD SIP-approved,it has submitted a SIP and is awaiting final approval; therefore the letter addresses relevant PSD questions in anticipation of approval.  The state will interpret subject to regulation in the same manner as EPA, and intends to undertake rulemaking in order to implement the Tailoring Rule approach for both its PSD and Title V programs.  The state has initiated a formal state rulemaking process, and seeks to finish in less than one year. North Carolina August 2, 2010  North Carolina needs to undertake a rulemaking process in order to incorporate the Tailoring Rule thresholds under itsPSD program.  Its Title V program automatically incorporates the federal definition of major 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 967 source; the state will review regulations, including fees, to ensure sufficient resources to permit GHGs under Title V.  The state has begun the rulemaking process for PSD.The earliest completion date is January 2, 2011. However if there are letters of objection the rule will be forwarded to the next legislative session; if so, it may take as long as summer 2011 for the rules to take effect. North Dakota 5 June 21, 2010  North Dakota intends to apply the definition of subject to regulation under both its PSD and Title V programs, and will impleme nt the definition as of January 2, 2011.  The state will also update state rules to incorporate the definition of subject to regulation.  The process of updating state rules has already begun and is expected to be completed by April 1, 2011. Ohio July 26, 2010  Ohio needs to modify its PSD and Title V rules in order to permit GHGs consistent with the Tailoring Rule.  The state has begun the rulemaking process, which could be completed by December 2010 if there are no delays. Oklahoma July 15, 2010  Oklahoma regulations could support an interpretation that the state does have the authority to permit GHGs under its PSD andTitle V programs.  State rules for PSD and Title V need to be revised in order to incorporate the Tailoring Rule thresholds.  The state plans to initiate a rulemaking process. It will not be possible to have rules in place by January 2, 2011. The earliest date that rules could be in place is July 2011, but it may be as long as July 2012 if the rulemaking process results in unexpected problems. Oregon July 29, 2010  Oregon needs to undertake a regulatory process in order to include GHGs as a regulated pollutant under its PSD program and incorporate the Tailoring Rule definition of subject to regulation.  The state expects to complete its regulatory process on February 17, 2011 and submit SIP revisions to EPA. Pennsylvania August 4, 2010  Pennsylvania has the authority to apply the Tailoring Rule definition of subject to regulation without making any regulatoryor legislative changes for both its PSD and Title V programs. Puerto Rico July 29, 2010  Puerto Rico needs to amend its regulations in order to incorporate the Tailoring Rule thresholds for its Title V program.  A public hearing for the proposed Title V amendments is expected by December 2010. Rhode Island August 3, 2010  Rhode Island has the authority to permit GHGs

.  PSD and Title V regulations need to be revised in order to incorporate the Tailoring Rule thresholds.  The state anticipates adopting the necessary regulations before January 2, 2011. South Carolina August 2, 2010  South Carolina needs to revise its regulations in order to incorporate the Tailoring Rule thresholds for both its PSD and Title V programs.

5On July 29, 2010, North Dakota submitted a follow up letter clarifying that nothing in the initial, J une 21, 2010 letter, summarized above, was intended to waive thestate’s right to challenge the legality of any EPArule or action. 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 978  As a temporary measure, the South Carolina legislature enacted a Joint Resolution, effective June 11, 2010, that makes theTailoring Rule provisions effective in South Carolina until the state revisesits PSD and Title V regulations.  The temporary measure is already in effect; permanent regulatory revisions are expected to take at least 18 months. South Dakota July 30, 2010  South Dakota needs to take action to incorporate the Tailoring Rule definition of subject to regulation into its rules for both PSD and Title V.  The state estimates that the adoption of the definition of subject to regulation and submittal of SIP revisions will takeuntil at least January 2011. Tennessee July 30, 2010  Tennessee has the a uthority to permit GHGs under both its PSD and Title V programs.  The state needs to undertake a rulemaking process in order to incorporate the Tailoring Rule thresholds for PSD and Title V.  The state is working to complete the regulatory revisions by January 2, 2011. Texas August 2, 2010  Texas does not have the authority to permit GHGs, and does not intend to interpret or amend its laws to compel GHG permitting. Utah July 29, 2010  Utah intends to adopt the Tailoring Rule definition of subject to regulation for both its PSD and Title V programs, and needs toundertake rule changes in order to do this.  The state plans to adopt final rule changes by end of December 2010. Vermont July 22, 2010  Vermont needs to amend its laws and regulations in order to incorporate the Tailoring Rule thresholds.  Statutory changes took effect July 1, 2010. Regulatory changes are now underway and are expected to be completed by the end of 2010. Virginia July 28, 2010  Virginia needs to revise its regulations in order to incorporate the Tailoring Rule thresholds under its PSD and Title V programs.  The state anticipates, pending approval, using an expedited process to present proposed regulatory revisions in September 2010. Assuming the revisions are adopted they would take effect by Jan uary 2, 2011. Washington July 29, 2010  Washington needs to amend its general permitting and Title V regulations in order to apply the Tailoring Rule definition of subject to regulation.  The state expects that the rulemaking process will be completed, and the amended rules in effect, by January 2, 2011. West Virginia July 30, 2010  West Virginia will undertake a legislative process in order to incorporate the Tailoring Rule thresholds under its PSD and Title Vprograms.  Provisionally, the state plans to apply the Tailori ng Rule definition of subject to regulation in its PSD and Title V programs, while also pursuing rulemaking.  The state intends to send PSD amendments to its legislature in the 2011 session; if approved, it anticipates the amendmentswould take effect in June 2011. The state intends to undertake emergency rulemaking to amend its Title V rules by early February 2011, and will alsopursue a permanent rule that will likely be effective in May 2012. Wisconsin July 28, 2010  Wisconsin needs to revise its state rules, and also plans to revise its SIP, in order to incorporate the Tailoring Rule provisions for both its PSD and Title V programs.  The state intends to promulgate emergency rules that will take effect no 

### Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 989 later than January 2, 2011, and estimates that permanent rulemaking will take 9-12 months. Wyoming6 July 30, 2010  Wyoming is still evaluating its options, including regulato ry and legislative processes, and wants to take time to understand theimplications of each option. Butte Co., CA July 30, 2010  Butte Co. does not implement a PSD program.  The district can apply the meaning of subject to regulation to its Title V program without rule changes, though it may in the future add the specific definition to its rules for clarification. Monterey Bay, CA July 28, 2010  Monterey Bay can implement the Tailoring Rule provisions under its PSD program without undertaking regulatory changes. The district intends to revise its Title V regulations to mirror the Tailoring Rule.  The district plans to propose Title V revisions; notimeline given. Northern Sonoma Co., CA July 30, 2010  Northern Sonoma Co. needs to revise its rules in order to incorporate the Tailoring Rule provisions under its PSD and Title Vprograms.  The district intends to propose rules to its govern ing board by the end of 2010. Sacramento, CA July 27, 2010  Sacramento needs to revise its rules to include GHGs under its PSD and Title V programs, and will also revise its rules consistent with the Tailoring Rule thresholds.  The district plans to prepare rule changes and present them for adoption on January 27, 2011. The district will also submit SI P revisions to EPA. San Luis Obispo Co., CA August 3, 2010  San Luis Obispo Co. does not implement a PSD program.  The district needs to revise its Title V rules in order to incorporate the Tailoring Rule thresholds.  The district anticipates presenting the revised rule for adoption on January 27, 2011. South Coast, CA July 30, 2010  South Coast currently implements a PSD program under partial delegation.  The district intends to amend its local rules for PSD and Title V in order to incorporate the Tailoring Rule requirements.  The district anticipates presenting the proposed amendments to its local rules by December 3, 2010, though it cannot guarantee final action on the proposed amendments by the end of 2010. Ventura Co., CA July 30, 2010  Ventura Co. does not implement a PSD program.  The district needs to revise its Title V rules in order to incorporate the Tailoring Rule requirements.  The district intends to adopt rule amendments by December 14, 2010. Louisville, KY August 2, 2010  Louisville needs to revise its regulations in order to implement the Tailoring Rule definition of subject to regulation for its PSD and Title V programs. It will also need to revise a number of other regulations to clarify the scope of GHG regulations.  The district anticipates adoption of the revisions by the end of December 2010.

6Wyoming’s letter in response to the Tailoring Rulerequest for information is summarized here. The state subsequently submitted a letter in response to EPA’s proposed SIP Call indicating that it does not bel ieve it has the authority to regulate GHG emissions.



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Clark Co., NV August 2, 2010  Clark Co. does not have the authority to permit GHGs for PSD or Title V under its existing SIP-approved rule. The department is in the process of submitting a SIP revision to EPA that more closely tracks federal language for PSD and Title V and includes the term subject to regulation.  The county needs to undertake a regulatory process in order to adopt the definition of subject to regulation in the Tailoring Rule.  The county will work with EPA to determine the bestapproach for making sure that federally enforceable PSD and Title V permits are available beginning January 2, 2011. 

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