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

staff have 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 ofsix

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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 ofsix 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,

20II 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 staff has 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 of perjury under the laws ofthe United States that

the foregoing is true and correct.

Executed on October 21, 2010, at Sacramento, California.

~~Sacramento Metropolitan Air Quality

Management District

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Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 4
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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 of Larry Greene, in Opposition to Motions for a Stay ofEPA's Greenhouse

Gas Tailoring Rule (in the matter of Southeastern 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 of business.

Susan Durbin, Deputy Attorney General

1300 I Street

P.O. Box 944255

Sacramento, CA 94244-2550

Morgan A. Costello, Asst Attorney General

NYS Office ofthe Attorney General

Environmental Protection Bureau

The Capitol

Albany, NY 12224-0341

I declare under penalty of perjury that the forego· g is true and correct. Executed on

October 25,2010, at Sacramento, California.

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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).)

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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"), 1prepared 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 of permits

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 of perjury under the laws ofthe State ofCalifornia,

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

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Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 9
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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, 20 I 0, I served a copy ofthe following document:

I) Declaration of Kathrine Pittard, in Opposition to Motions for a Stay of EPA's

Greenhouse Gas Tailoring Rule (in the matter of Southeastern 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 of business.

I declare under penalty of perjury that the foregoing is true and correct. Executed on

October 25, 20I 0, at Sacramento, California.

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Morgan A. Costello, Asst Attorney General

NYS Office ofthe 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 ofCalifornia.

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 staff will be

able to do so. We have approximately 110 engineering staff handling 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 ofsources 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 ofsources 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 staff has 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 of perjury 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: 15
AFFIDAVIT

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 off Air 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 ofSignificant 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 ofsignificant 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 ofSignificant Deterioration Program to Sources of

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 16
Greenhouse 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, of March 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 of greenhouse

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),

hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) - in the

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Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 17
atmosphere threaten the public health and welfare of current and future generations.

Consequently, if not mitigated, Connecticut's environment will be impacted.

12. The Tailoring Rule is a good step in the direction oflimiting 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

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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 ofSignificant Deterioration and Title V Permitting 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 ofsignificant 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 ofsmall 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 of a 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: 19
H. 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 of best 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 staff partnering 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 of our 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: 20
H. 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 ofAir Pollution

(GPLPE). The GPLPE is a practicably enforceable pennit designed for facilities with potential

entissions of a 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 staff have any questions regarding this submittal, please contact mc at

860-424-3026. .

Sincerely yours,

Anne R. Gobin, Chief

Bureau ofAir 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: 22
UNITED 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 ofthe public and all Delawareans to reduce

greenhouse gas emissions to prevent negative impacts of climate 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: 23
2

IMWN C. MINOR

"Wile, 8Iale Of Delaware

My ConwnIuion Expires November 17. 2012

United States Court of Appeals for the District ofColumbia Circuit

Case No. 10-1131

Affidavit of Ali Mirzakhalili

Page 2 of2

4. 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 I0, 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 ofsmaller 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: 25
AFFIDAVIT

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: 26
4. 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 (SF6) -

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 of perjury:

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 ofIllinois. 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 of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule (75 FR

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 29
31514; 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 ofsignificant 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: 30
8. 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

ofJanuary 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 of perjury 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, ILhOh01 • ('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 SignificantDeterioration (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 thatIllinois' permit exel.llptionprovisiOljs be expanded so as to not

require permitting ofsmaller 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 ofsources 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.

Rock!ord. 4Jf'1 N. 'Y\ili,.. 51 , Roddord, Il h 110] • .:11 15' IjfO~776~~,

Elgin. 595 5. Slate, EIAin, It bOl2.1. 111 07) 60&3 131

Bureatl of Lmd - Peoria. 7610 N. LJtllversill St, P(:'oria, It 0 Itj14 ,. fJ09) (9).54£)2

CClnins\'iII{~ • .,2009 M.l1I Sm"l'I, (Onh'lo;\'llIf~. a bl 214 0 ih I fI} 3~fJ,51 zn

t)cs rlaines • ~)!; 11 VI. ti.lrr.~':)I' Sl .. r)(.lC, rI3inp<., II (.nOl h. (8 ... il 294·4000

J)coria _ 5415 N. UniYersi'y 51., Peoria.ll 61614 • (309j 6CJj~~4(1)

Ch.mpa;,;" .:' 1:!~ ~. ~i"<l ~I. Champaign II 6-18200121712711,5800

M3rinn 0 ~.if\9 VV..;\'13ir~ Sl , (,tiill> '11(" M.,rinn.. 1I. (~295q • {(18) 993·7200

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 33
To 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 GHGs.

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 of planned legislative changes.

Forthe 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 of 20 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 ofsignificant 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 CO2

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 ofsmog.

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 of various 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 ofCalifornia'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 of peljury under the laws ofthe 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 ofClimate Strategies

Massachusetts Department of

Environmental Protection

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 40
DEVALL. 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 of our 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 anational 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 Ior Hsubstance subject to astandard promulgated under or established by 42 U.S.C. 7401. Title VI; or

(e) Any pollutant subject to astandard 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 asubject 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: 41
Curt 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, of any 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 half of calendar yeal' 2011.

Should you or your staff have 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: 43
ORAL 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 of coastline, Maryland is among those

states that will be most impacted by the effects of climate 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 of climate 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 of precipitation events will result in more stormwater runoff

during the winter and spring months and increased nutrient levels in theBay and

its tributaries. Due to additional energy ofstorms from warmed waters, the

violence ofstorms and frequency and intensity ofstream 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 of climate 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/J '), /J. 0 I /) • ,2010, at fJu /hJlVldr- /f1p

6

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

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Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 50
Ms. 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: 51
Ms. 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

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

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 of an

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 ofsmog.

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 55
4. I have primary responsibility at DEP to oversee the protection and improvement

of air quality for the citizens of Maine. 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: 56
9. 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: 57
OCT-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 5590 (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

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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

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PRESQUE ISLE, MAINE 0,67'·2094

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

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 12

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 of public 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 ofSignificant 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 ofthe New

Hampshire Climate Action Plan can be found at

http://des.nh. gov1organization!divisionslair/tsb/tpslclimatelaction plan!documentsl

nhcap finaLpdf).

I declare under penalty of peljury 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 of New Hampshire

Department ofEnviromnental 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 ifso,

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.fAir Quality Implementation Plans;

New Hampshire; Preventian ofSignificant Deterioration (PSD) ofAir 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 Vfor Greenhouse Gases

July 30,2010

Page 2

the term "subject to rcgulation" in the state rules but the program incorporates sections ofthe

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 ofthe 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

ofsmall sources and modifications into the PSD program each year, and millions ofsmall

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 I0, \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: 68
NHDES Implementation qfPSD and title VfoJ' 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, 2010

Resources Council (NHARC) - initiates a 15-

dayrevicw period by NHARC

Filing of Fiscal Impact Statement Request Septcmber 1,2010 ':, - ,

. Filing ofRulemakina Notice September 10, 2010

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. If you 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 13

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, 1114-1115, 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 the State 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 served on 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 the NJDEP, I submitted comments to the 

USEPA’s Prevention of Significant Deterioration and Title 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: 71
Exhibit 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 of perjury under the laws ofthe United States that the foregoing is

true and correct.

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

William O'Sullivan

2

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 72
Division 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 practical and 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, my staff estimates that approximately 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 title V 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 conditions to 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 facilities 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 CO2e 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 be a 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 not reduce 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 permits issued 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 fee 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 presumptive fee of 25 dollars per ton. Also, the 

operating permit workload for a 25,000 TPY GHG major 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 cents per 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: 77
CHRIS 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 "a facility that constiP.ltes a <major source' as that term is defined by the EPA in Y1.lles

and regulations adoptedpursuant to the federal 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 15

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 efforts 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 rule that 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. See Letter to EPA Regional Administrator Judith Enck, Aug. 11, 2010, 

attached as Exhibit A. 

5. EPA recently proposed approval of revisions to DEC’s State Implementation Plan 

(SIP). Approval and Promulgation of Implementation 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 to major 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 Rule and, 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. See NACAA, 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 serves to 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. This is 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: 86
York 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 of perjury 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

\

, 2010, at ----L----''----'=-------;-~___+

4

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 87
DAVID 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 ofsmall GHG emission sources in New York may become subject to

stale PSD and Title V requirements as a matter ofstate 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 ofsmaller 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: 88
2.

, 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 of having 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 of our Division of Air 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: 90
1 

States Moving Full Speed Ahead on Greenhouse Gas Permitting 

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 local 

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. In 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, 2011. 

 In December 2009, pursuant to the Supreme Court’s 2007 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.1

 Following on that finding, EPA and the U.S. 

Department of Transportation issued a final rule controlling GHGs from new motor vehicles and engines 

on April 1, 2010.2 Once GHGs become subject to regulation under the Clean Air Act, permitting 

provisions under PSD and Title V are triggered, requiring the implementation of control technologies to 

abate emissions of GHGs. In anticipation of this, EPA promulgated the final Johnson Memo 

Reconsideration3 in 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 administrative 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. 

 

 

1

 Endangerment and Cause or Contribution Findings for Greenhouse Gases under Section 202(a) of the Clean Air 

Act, 74 Federal Register 66496 (December 15, 2009). 

2

 Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final 

Rule, 75 Federal Register 25324 (May 7, 2010). 

3

 Reconsideration of Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting 

Programs; Final Action on Reconsideration of Interpretation, 75 Federal Register 17004 (April 2, 2010). 

4

 75 Federal Register 31514 (June 3, 2010). 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 91
2 

 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 are 

working quickly to prepare for GHG permitting and incorporate 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 Columbia currently has a SIP-approved PSD program. In

California, local air pollution control agencies throughout the state are responsible for stationary source 

permitting, and the PSD program in most of California is implemented by EPA under federal regulations. 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 92
3 

State-By-State Summary

AGENCY & DATE SUMMARY OF RESPONSES

Alabama

July 31, 2010 

 Alabama has the authority to permit GHGs under both PSD and Title 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 in January 2011. The 

state has requested parallel processing for this SIP 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 January 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 EPA limit approval of its PSD 

and delegated Title V program to match the GHG permitting 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 include 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 to explicitly add the 

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4 

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 compliance 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 to regulation 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 changes 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 March/early April 2011. 

Illinois

July 29, 2010 

 Illinois has the authority to permit GHGs consistent with 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 

 Indiana 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 interim 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 submit these to EPA for inclusion 

in its SIP by the end of December 2010. 

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5 

Kansas

August 2, 2010 

 Kansas needs to revise its regulations in order to implement the Tailoring 

Rule provision for both its PSD and Title V programs. 

 The state estimates that regulatory changes will be completed 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 changes and 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 

 Maine has the authority to implement PSD and Title V permitting for GHGs.

 Certain regulatory changes need to be made in order to incorporate the 

Tailoring Rule thresholds. 

 The state expects that regulatory changes will be adopted before January 2, 

2011. 

Maryland

August 2, 2010 

 Maryland intends to amend its regulations consistent with 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 

 Massachusetts 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 incorporate the Tailoring Rule 

thresholds for its Title V program. 

 The goal is to provide regulatory language for public review during the first 

half of 2011. 

Michigan

July 27, 2010 

 Michigan 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 in 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 

 Minnesota 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-only permits may also be 

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6 

modified.

 The state expects to initially use an expedited rulemaking process to 

complete regulatory changes for its Title V program by January 2, 2011. It 

will then need to undertake a traditional rulemaking process beginning in 

early 2011, and expects to have final rulemaking finished by mid/late 2012. 

Mississippi

July 28, 2010 

 Mississippi needs to amend its regulations in order to implement 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 

 Missouri 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 

 Montana’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 apply EPA’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 Mexico 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 its PSD program. 

 Its Title V program automatically incorporates the federal definition of major 

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7 

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 Dakota5

June 21, 2010 

 North Dakota intends to apply the definition of subject to regulation under 

both its PSD and Title V programs, and will implement 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 and Title 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 regulatory or 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. 

 

5

 On July 29, 2010, North Dakota submitted a follow up letter clarifying that nothing in the initial, June 21, 2010 

letter, summarized above, was intended to waive the state’s right to challenge the legality of any EPA rule or 

action. 

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8 

 As a temporary measure, the South Carolina legislature enacted a Joint 

Resolution, effective June 11, 2010, that makes the Tailoring Rule provisions 

effective in South Carolina until the state revises its 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 take until at least January 2011. 

Tennessee

July 30, 2010 

 Tennessee has the authority 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 to undertake 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 January 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 V programs. 

 Provisionally, the state plans to apply the Tailoring 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 amendments would take effect in June 

2011. The state intends to undertake emergency rulemaking to amend its 

Title V rules by early February 2011, and will also pursue 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: 98
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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 regulatory and legislative 

processes, and wants to take time to understand the implications 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; no timeline 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 V programs. 

 The district intends to propose rules to its governing 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 SIP 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. 

 

6

 Wyoming’s letter in response to the Tailoring Rule request for information is summarized here. The state 

subsequently submitted a letter in response to EPA’s proposed SIP Call indicating that it does not believe it has the 

authority to regulate GHG emissions. 

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10 

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 best approach for making 

sure that federally enforceable PSD and Title V permits are available 

beginning January 2, 2011. 

Case: 10-1131 Document: 1274851 Filed: 11/01/2010 Page: 100