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6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

RIN-2060-AQ45

Action to Ensure Authority to Issue Permits under the Prevention 

of Significant Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: In this rulemaking, EPA is proposing a federal 

implementation plan (FIP) to apply in any state that is unable 

to submit, by its deadline, a corrective state implementation 

plan (SIP) revision to ensure that the state has authority to 

issue permits under the Clean Air Act's (CAA or Act) New Source 

Review Prevention of Significant Deterioration (PSD) program for 

sources of greenhouse gases (GHGs). This proposal is a 

companion rulemaking to "Action to Ensure Authority to Issue 

Permits Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: Finding of 

Substantial Inadequacy and SIP Call," which is being signed and 

published on the same schedule. In that action, EPA is 

proposing to make a finding of substantial inadequacy and 

proposing to issue a SIP call for 16 states on grounds that 
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their SIPs do not appear to apply the PSD program to GHGemitting sources.

DATES: Comments. Comments must be received on or before 

[INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER].

Public Hearing: One public hearing concerning the proposed 

regulation will be held before the end of the comment period. 

The date, time and location will be announced separately. 

Please refer to SUPPLEMENTARY INFORMATION for additional 

information on the comment period and the public hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. 

EPA-HQ-OAR-2010-0107 by one of the following methods:

 www.regulations.gov: Follow the online instructions for 

submitting comments.

 E-mail: a-and-r-docket@epa.gov.

 Fax: (202) 566-9744

 Mail: Attention Docket ID No. EPA-HQ-OAR-2010-0107, U.S. 

Environmental Protection Agency, EPA West (Air Docket), 

1200 Pennsylvania Avenue, NW, Mail code: 6102T, Washington, 

DC 20460. Please include a total of 2 copies.

 Hand Delivery: U.S. Environmental Protection Agency, EPA 

West (Air Docket), 1301 Constitution Avenue, Northwest, 

Room 3334, Washington, DC 20004, Attention Docket ID No. 
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EPA-HQ-OAR-2010-0107. Such deliveries are only accepted 

during the Docket's normal hours of operation, and special 

arrangements should be made for deliveries of boxed 

information.

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR2010-0107. EPA's policy is that all comments received will be 

included in the public docket without change and may be made 

available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information 

claimed to be Confidential Business Information (CBI) or other 

information whose disclosure is restricted by statute. Do not 

submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The

www.regulations.gov Web Site is an "anonymous access" system, 

which means EPA will not know your identity or contact 

information unless you provide it in the body of your comment. 

If you send an e-mail comment directly to EPA without going 

through www.regulations.gov, your e-mail address will be 

automatically captured and included as part of the comment that 

is placed in the public docket and made available on the 

Internet. If you submit an electronic comment, EPA recommends 

that you include your name and other contact information in the 

body of your comment and with any disk or CD-ROM you submit. If 
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EPA cannot read your comment due to technical difficulties and 

cannot contact you for clarification, EPA may not be able to 

consider your comment. Electronic files should avoid the use of 

special characters, avoid any form of encryption, and be free of 

any defects or viruses. For additional information about EPA's 

public docket, visit the EPA Docket Center homepage at 

www.epa.gov/epahome/dockets.htm. For additional instructions on 

submitting comments, go to section I.C of the SUPPLEMENTARY 

INFORMATION section of this document.

Docket. All documents in the docket are listed in the 

www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other 

information whose disclosure is restricted by statute. Certain 

other material, such as copyrighted material, will be publicly 

available only in hard copy. Publicly available docket 

materials are available either electronically in 

www.regulations.gov or in hard copy at the U.S. Environmental 

Protection Agency, Air Docket, EPA/DC, EPA West Building, Room 

3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The telephone number for the 

Public Reading Room is (202) 566-1744, and the telephone number 

for the Air Docket is (202) 566-1742. 
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FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality 

Policy Division, Office of Air Quality Planning and Standards 

(C504-03), Environmental Protection Agency, Research Triangle 

Park, NC 27711; telephone number: (919) 541-3450; fax number: 

(919) 541-5509; e-mail address: sutton.lisa@epa.gov.

SUPPLEMENTARY INFORMATION:

For questions related to a specific state, local, or tribal 

permitting authority, or to submit information requested in this 

action, please contact the appropriate EPA regional office:

EPA 

Regional 

office

Contact for regional office

(person, mailing address, 

telephone number) Permitting authority

I Dave Conroy, Chief, Air 

Programs Branch,

EPA Region 1, 5 Post Office 

Square, Suite 100, Boston, MA 

02109-3912, (617) 918-1661.

Connecticut, 

Massachusetts, Maine, 

New Hampshire, Rhode 

Island, and Vermont.

II Raymond Werner, Chief, Air 

Programs Branch, EPA Region 2, 

290 Broadway, 25th Floor, New 

York, NY 10007-1866, (212) 

637-3706.

New Jersey, New York, 

Puerto Rico, and Virgin 

Islands.

III Kathleen Anderson, Chief, 

Permits and Technical 

Assessment Branch, EPA Region 

3, 1650 Arch Street, 

Philadelphia, PA 19103-2029, 

(215) 814-2173. 

District of Columbia, 

Delaware, Maryland, 

Pennsylvania, Virginia, 

and West Virginia.

IV Dick Schutt, Chief, Air 

Planning Branch, EPA Region 4, 

Atlanta Federal Center, 61 

Forsyth Street, SW, Atlanta, 

GA 30303-3104, (404) 562-

9033.

Alabama, Florida,

Georgia, Kentucky, 

Mississippi, North 

Carolina, South 

Carolina, and 

Tennessee.
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V J. Elmer Bortzer, Chief, Air 

Programs Branch (AR-18J), EPA 

Region 5, 77 West Jackson 

Boulevard, Chicago, IL 60604-

3507, (312) 886-1430.

Illinois, Indiana, 

Michigan, Minnesota, 

Ohio, and Wisconsin.

VI Jeff Robinson, Chief, Air 

Permits Section, EPA Region 6, 

Fountain Place 12th Floor, 

Suite 1200, 1445 Ross Avenue, 

Dallas, TX 75202-2733, (214) 

665-6435.

Arkansas, Louisiana, 

New Mexico, Oklahoma, 

and Texas.

VII Mark Smith, Chief, Air 

Permitting and Compliance 

Branch, EPA Region 7, 901 

North 5th Street, Kansas City, 

KS 66101, (913) 551-7876.

Iowa, Kansas, Missouri, 

and Nebraska.

VIII Carl Daly, Unit Leader, Air 

Permitting, Monitoring & 

Modeling Unit, EPA Region 8, 

1595 Wynkoop Street, Denver, 

CO 80202-1129, (303) 312-

6416.

Colorado, Montana, 

North Dakota, South 

Dakota, Utah, and 

Wyoming.

IX Gerardo Rios, Chief, Permits 

Office, EPA Region 9, 75 

Hawthorne Street, San 

Francisco, CA 94105, (415) 

972-3974.

Arizona; California;

Hawaii and the Pacific 

Islands; Indian Country 

within Region 9 and 

Navajo Nation; and 

Nevada.

X Nancy Helm, Manager, Federal 

and Delegated Air Programs 

Unit, EPA Region 10, 1200 

Sixth Avenue, Suite 900, 

Seattle, WA 98101, (206) 553-

6908.

Alaska, Idaho, Oregon, 

and Washington.

I. General Information

A. Does this action apply to me?

Entities potentially affected by this rule include states, 
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local permitting authorities, and tribal authorities.1 Any SIPapproved PSD air permitting regulation that is not structured 

such that it includes GHGs among pollutants subject to 

regulation under the Act will potentially be found substantially 

inadequate to meet CAA requirements, under CAA 110(k)(5), and 

the state will potentially be affected by this rule. For 

example, if a state's PSD regulation identifies its regulated 

NSR pollutants by specifically listing each individual pollutant

and the list omits GHGs, then the regulation is inadequate.

Entities potentially affected by this rule also include 

sources in all industry groups, which have a direct obligation 

under the CAA to obtain a PSD permit for GHGs for projects that 

meet the applicability thresholds set forth in the Tailoring 

Rule.

2 This independent obligation on sources is specific to PSD 

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

state PSD air permitting regulation not structured to apply to 

GHG-emitting sources will potentially rely on this rule to 

 

1 EPA respects the unique relationship between the U.S. 

government and tribal authorities and acknowledges that tribal 

concerns are not interchangeable with state concerns. However, 

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

collectively mean states, local permitting authorities, and 

tribal authorities.

2 Prevention of Significant Deterioration and Title V Greenhouse 

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

The Tailoring Rule is described in more detail later in this 

preamble.
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obtain a permit that contains emission limitations that conform 

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

potentially affected by this action are expected to be in the 

following groups:

Industry Group NAICSa

Utilities (electric, natural 

gas, other systems)

2211, 2212, 2213

Manufacturing (food, beverages, 

tobacco, textiles, leather)

311, 312, 313, 314, 315, 316

Wood product, paper 

manufacturing

321, 322

Petroleum and coal products 

manufacturing

32411, 32412, 32419

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

3256, 3259

Rubber product manufacturing 3261, 3262

Miscellaneous chemical products 32552, 32592, 32591, 325182, 

32551

Nonmetallic mineral product 

manufacturing

3271, 3272, 3273, 3274, 3279

Primary and fabricated metal 

manufacturing

3311, 3312, 3313, 3314, 3315, 

3321, 3322, 3323, 3324, 3325, 

3326, 3327, 3328, 3329

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

3336, 3339

Computer and electronic 

products manufacturing

3341, 3342, 3343, 3344, 3345, 

4446

Electrical equipment, 

appliance, and component 

manufacturing

3351, 3352, 3353, 3359

Transportation equipment 

manufacturing

3361, 3362, 3363, 3364, 3365, 

3366, 3366, 3369

Furniture and related product 

manufacturing

3371, 3372, 3379

Miscellaneous manufacturing 3391, 3399

Waste management and 

remediation

5622, 5629

Hospitals/nursing and 

residential care facilities

6221, 6231, 6232, 6233, 6239
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Personal and laundry services 8122, 8123

Residential/private households 8141

Non-residential (commercial) Not available. Codes only 

exist for private households, 

construction and leasing/sales 

industries.

a North American Industry Classification System.

B. Where can I get a copy of this document and other related 

information?

In addition to being available in the docket, an electronic 

copy of this proposal will also be available on the World Wide 

Web. Following signature by the EPA Administrator, a copy of 

this notice will be posted on the EPA's NSR Web Site, under 

Regulations & Standards, at www.epa.gov/nsr.

C. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA 

through www.regulations.gov or e-mail. Clearly mark the part or 

all of the information that you claim to be CBI. For CBI 

information in a disk or CD ROM that you mail to EPA, mark the 

outside of the disk or CD ROM as CBI and then identify 

electronically within the disk or CD ROM the specific 

information that is claimed as CBI. In addition to one complete 

version of the comment that includes information claimed as CBI, 

a copy of the comment that does not contain the information 

claimed as CBI must be submitted for inclusion in the public 
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docket. Information so marked will not be disclosed except in 

accordance with procedures set forth in 40 CFR part 2. Send or 

deliver information identified as CBI only to the following 

address: Roberto Morales, OAQPS Document Control Officer (C404-

02), U.S. EPA, Research Triangle Park, NC 27711, Attention 

Docket ID No. EPA-HQ-OAR-2010-0107.

2. Tips for preparing your comments. When submitting 

comments, remember to:

 Identify the rulemaking by docket number and other 

identifying information (subject heading, Federal Register

date and page number).

 Follow directions - The agency may ask you to respond to 

specific questions or organize comments by referencing a 

Code of Federal Regulations (CFR) part or section number.

 Explain why you agree or disagree; suggest alternatives and 

substitute language for your requested changes.

 Describe any assumptions and provide any technical 

information and/or data that you used.

 If you estimate potential costs or burdens, explain how you 

arrived at your estimate in sufficient detail to allow for 

it to be reproduced.

 Provide specific examples to illustrate your concerns, and 

suggest alternatives.
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 Explain your views as clearly as possible, avoiding the use 

of profanity or personal threats.

 Make sure to submit your comments by the comment period 

deadline identified.

D. How can I find information about the public hearing?

The EPA will hold one public hearing on this proposal. The 

date, time, and location of the public hearing will be announced 

separately. The EPA encourages commenters to provide written 

versions of their oral testimonies either electronically or in 

paper copy. If you would like to present oral testimony at the 

public hearing, please notify Ms. Pamela S. Long, New Source 

Review Group, Air Quality Policy Division (C504-03), U.S. EPA, 

Research Triangle Park, NC 27711, telephone number (919) 541-

0641, or email: long.pam@epa.gov. Persons interested in 

presenting oral testimony should notify Ms. Long at least 2 days 

in advance of the public hearing. Persons interested in 

attending the public hearing should also contact Ms. Long to 

verify the time, date, and location of the hearing. The public 

hearing will provide interested parties the opportunity to 

present data, views, or arguments concerning the proposed rule.

E. How is the preamble organized?

The information presented in this preamble is organized as 

follows:
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I. General Information

A. Does this action apply to me? 

B. Where can I get a copy of this document and other 

related information? 

C. What should I consider as I prepare my comments for 

EPA? 

D. How can I find information about the public hearing?

E. How is the preamble organized?

II. Background and Context of Proposed Rule

A. Introduction

B. CAA and Regulatory Context

C. SIP Inadequacy and Corrective Action; Federal 

Implementation Plans

D. States that Do Not Apply the PSD Program to GHG 

Sources; PSD GHG SIP Call

III. Proposed Federal Implementation Plan

A. Timing for FIP

B. Substance of FIP

IV. Statutory and Executive Order Reviews

A. Executive Order 12866 – Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform

E. Executive Order 13132 – Federalism

F. Executive Order 13175 – Consultation and Coordination 

with Indian Tribal Governments

G. Executive Order 13045 – Protection of Children from 

Environmental Health Risks and Safety Risks

H. Executive Order 13211 – Actions Concerning Regulations 

that Significantly Affect Energy Supply, Distribution, 

or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898 – Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations

K. Determination under Section 307(d)

V. Statutory Authority

II. Background and Context of Proposed Rule

A. Introduction

In this rulemaking under the CAA, EPA is proposing a FIP

for 16 states for which, in a companion action, EPA is proposing 
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a finding of SIP substantial inadequacy and is proposing to 

issue a SIP Call because the states' PSD SIP programs do not 

appear to apply to sources of GHGs. "Action to Ensure Authority 

to Issue Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call" (the "PSD GHG 

SIP Call" or "SIP Call"). These two rulemakings address states 

whose permitting regulations and SIPs appear to fail to apply 

the PSD program to sources of GHGs in those states. As a 

result, larger GHG-emitting sources in those states—which under 

EPA's "Tailoring Rule" (discussed elsewhere in this preamble) 

are the only ones subject to PSD for their GHG emissions in the 

near future—unable to obtain a PSD permit that covers GHG 

emissions and therefore potentially unable to undertake 

construction or modification projects on and after January 2, 

2011.

The states for which we are proposing a FIP are listed in 

table II-1, "States with SIPs that Do Not Appear to Apply PSD to 

GHG Sources (Presumptive SIP Call List)." If any of these 

states are not in a position to submit to EPA a corrective SIP 

revision by its deadline, EPA will promulgate a FIP that will 

apply the PSD program to the appropriate GHG sources in the 

state, thereby allowing them to apply for PSD permits for their 
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GHG emissions that will authorize their construction and 

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

GHG Sources (Presumptive SIP Call List)

State (or Area) EPA Region

Alaska X

Arizona: Pinal County IX

Arkansas VI

California: Sacramento Metropolitan AQMD IX

Connecticut I

Florida IV

Idaho X

Louisiana VI

Maine I

Montana VIII

Nevada: Clark County IX

New Hampshire I

Oklahoma VI

Oregon X

Texas VI

Utah VIII
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The rest of the states with approved SIP PSD programs 

(meaning each of those not listed in table II-1) are listed in 

table II-2, "States with SIPs that Appear to Apply PSD to GHG 

Sources (Presumptive Adequacy List)." For each of the states 

listed in table II-2 (as well as for any states with approved 

SIP PSD programs that we may have inadvertently omitted from 

table II-2), EPA is soliciting comment in the SIP Call companion 

notice on whether their SIPs do or do not apply the PSD program 

to GHG-emitting sources. We are not at this time proposing a 

FIP for the states listed in table II-2. However, if EPA 

concludes, on the basis of information EPA receives, that such a 

state's SIP does not apply the PSD program to GHG-emitting 

sources, then EPA will proceed to issue for that state a finding 

of substantial inadequacy and a SIP Call on the same schedule as 

for the states listed in table II-1 (the presumptive SIP Call

list). If a state that receives a SIP Call is not able to 

submit to EPA, by the deadline required in the SIP Call, a 

corrective SIP revision that applies the PSD program to GHG 

sources, then EPA will, without further notice and comment, 

promulgate a FIP that will apply the PSD program to GHG sources 

in the state, so that sources can apply for PSD permits that 

will authorize their construction and modifications.

Accordingly, interested parties in a state for which we, in the 
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companion SIP Call rulemaking, solicit comment on the adequacy 

of its SIP to apply PSD to GHG-emitting sources should consider 

the comment period for the present notice to be their 

opportunity to comment on the FIP that EPA would implement in 

their state (should EPA ultimately determine to issue a SIP Call 

for their state in EPA's final action on the companion SIP Call 

rulemaking).
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Table II-2. States with SIPs that Appear to Apply PSD to GHG 

Sources (Presumptive Adequacy List)

State (or Area) EPA Region

Alabama: Jefferson County; Huntsville; Rest 

of State

IV

Arizona: Rest of State (Excludes Pinal County 

and Indian Country)

VIII

California: Monterey Bay Unified APCD; North 

Coast Unified AQMD; Northern Sonoma 

County APCD

IX

Colorado VIII

Delaware III

Georgia IV

Indiana V

Iowa VII

Kansas VII

Kentucky: Jefferson County; Rest of State IV

Maryland III

Michigan V

Mississippi IV

Missouri VII

Nebraska: Lincoln Lancaster; Omaha; Rest of 

State

VII

New Mexico: Albuquerque; Rest of State VI

North Carolina: Forsythe County; Mecklenburg; 

Western NC; Rest of State

IV

North Dakota VIII

Ohio V

Pennsylvania: All except Allegheny County III

Rhode Island I

South Carolina IV

South Dakota VIII

Tennessee: Chattanooga; Nashville; Knoxville; 

Memphis; Rest of State

IV

Vermont I

Virginia III

West Virginia III

Wisconsin V

Wyoming VIII
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The background and context for this proposed rule is the 

same as for the proposed PSD GHG SIP Call and other actions 

cross-referenced in that action. Familiarity with the proposed 

PSD GHG SIP Call is presumed. As a result, the background and 

context for this rule will be only briefly summarized here.

B. CAA and Regulatory Context

1. SIP PSD Requirements 

Under the CAA PSD requirements, a new or existing source 

that emits or has the potential to emit "any air pollutant" in 

specified quantities cannot construct or modify unless it first 

obtains a PSD permit that, among other things, imposes emission 

limitations that qualify as best available control technology 

(BACT). CAA 165(a)(1), 165(a)(4), 169(1). Longstanding EPA 

regulations have interpreted the term "any air pollutant"

narrowly so that only emissions of any "regulated NSR pollutant"

trigger PSD. 40 CFR 52.21(j)(2), (b)(50)(iv). The term 

"regulated NSR pollutant" is defined to include the following 

four classes of air pollutants:

(i) any pollutant for which a NAAQS has been promulgated;

(ii) any pollutant subject to an NSPS promulgated under 

CAA 111;

(iii) any pollutant subject to a standard promulgated 

under CAA title VI; and
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(iv) "any pollutant that otherwise is subject to 

regulation under the Act" (excluding HAPs listed under CAA 112).

The CAA contemplates that the PSD program be implemented in 

the first instance by the states. States are required to 

include PSD requirements in their SIPs. CAA 110(a)(2)(C). Most 

states have PSD programs that have been approved into their 

SIPs, and these states implement their PSD program and act as 

the permitting authority. For the most part, these approved 

SIPs mirror EPA regulatory requirements, as found in 40 CFR 

51.166 (except for the recently added revisions from the 

Tailoring Rule). As a result, most SIPs include the 

applicability requirement that PSD apply to sources that 

construct or modify and thereby increase their emissions of any 

"regulated NSR pollutant." A number of states do not have PSD 

programs approved into their SIPs; in those states, EPA's 

regulations at 40 CFR 52.21 govern, and either EPA or the state 

as EPA's delegatee acts as the permitting authority.

2. Recent EPA Regulatory Actions Concerning PSD Requirements 

for GHG-emitting Sources

Beginning on January 2, 2011, certain stationary sources 

that construct or undertake modifications will become subject to 

the CAA requirement to obtain a PSD permit for their GHG 

emissions. This is because of the following EPA regulatory 
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actions.

By notice dated December 15, 2009, pursuant to CAA 202(a), 

EPA issued, in a single final action, two findings3 regarding 

GHGs that are commonly referred to as the "Endangerment Finding" 

and the "Cause or Contribute Finding." In the Endangerment 

Finding, EPA found that six long-lived and directly emitted 

GHGs—carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O),

hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur 

hexafluoride (SF6)—may reasonably be anticipated to endanger 

public health and welfare. In the Cause or Contribute Finding, 

the Administrator "define[d] the air pollutant as the aggregate 

group of the same six * * * greenhouse gases," 74 FR 66536, and 

found that the combined emissions of this air pollutant from new 

motor vehicles and new motor vehicle engines contribute to the 

GHG air pollution that endangers public health and welfare. 

By notice dated May 7, 2010, EPA published what is commonly 

known as the "Light-Duty Vehicle Rule" (LDVR),4 which for the 

first time established federal controls on GHGs, those emitted 

from light-duty vehicles. This rule specifies, in its 

applicability provisions, the air pollutant subject to control 

 

3 "Endangerment and Cause or Contribute Findings for Greenhouse 

Gases Under Section 202(a) of the Clean Air Act." 74 FR 66496. 

4 "Light-Duty Vehicle Greenhouse Gas Emission Standards and 

Corporate Average Fuel Economy Standards; Final Rule," 75 FR 

25324 (May 7, 2010).
Page 22 of 41

as the aggregate group of the six GHGs, including CO2, CH4, N2O, 

HFCs, PFCs, and SF6. 75 FR 25686 (40 CFR 86.1818-12(a)).

By notice dated April 2, 2010, EPA promulgated what is 

commonly known as the Johnson Memo Reconsideration.5 The Johnson 

Memo Reconsideration interpreted one of the regulatory triggers 

for PSD applicability—the term "subject to regulation"—and 

concluded that promulgation of the LDVR would render GHGs 

"subject to regulation" and thereby trigger PSD applicability 

for GHG-emitting sources on January 2, 2011, which according to 

EPA is the date upon which the LDVR takes effect.

By notice dated June 3, 2010, EPA published what is 

commonly known as the "Tailoring Rule,"

6 which limits the 

applicability of PSD to certain GHG-emitting sources through a 

multi-step phase-in approach. In the Tailoring Rule, EPA 

established the first two steps of the phase-in approach as 

follows:

For the first step of this Tailoring Rule, which 

will begin on January 2, 2011, PSD * * * requirements 

will apply to sources' GHG emission only if the 

 

5 "Interpretation of Regulations that Determine Pollutants 

Covered by Clean Air Act Permitting Programs" (April 2, 2010) 

(finalizing EPA response to petition for reconsideration of 

"EPA's Interpretation of Regulations that Determine Pollutants 

Covered by Federal Prevention of Significant Deterioration (PSD) 

Permit Program" (commonly known as the "Johnson Memo"), December 

18, 2008).

6 "Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule," 75 FR 31514. 
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sources are subject to PSD * * * anyway due to their 

non-GHG pollutants. [We call these sources "anyway 

sources."] Therefore, EPA will not require sources or 

modifications to evaluate whether they are subject to 

PSD * * * requirements solely on account of their GHG 

emissions. Specifically, for PSD, Step 1 requires 

that as of January 2, 2011, the applicable 

requirements of PSD, most notably, the best available 

control technology (BACT) requirement, will apply to 

projects that increase net GHG emissions by at least 

75,000 tpy carbon dioxide equivalent (CO2e) but only if 

the project also significantly increase emissions of 

at least one non-GHG pollutant.

The second step * * * beginning on July 1, 2011, 

will phase in additional large sources of GHG 

emissions. New sources * * * that emit, or have the 

potential to emit, at least 100,000 tpy CO2e will 

become subject to the PSD * * * requirements. In 

addition, sources that emit or have the potential to 

emit at least 100,000 tpy CO2e and that undertake a 

modification that increases net emissions of GHGs by 

at least 75,000 tpy CO2e will also be subject to PSD 

requirements. [We call this the 100,000/75,000

threshold.] For both steps, we note that if sources 

or modifications exceed these CO2e-adjusted GHG 

triggers, they are not covered by permitting 

requirements unless their GHG emissions also exceed 

the corresponding mass-based triggers (i.e.,

unadjusted for CO2e.)

75 FR 31516. In the Tailoring Rule, EPA codified the Johnson 

Memo Reconsideration interpretation of the term "subject to 

regulation" and added a further interpretation of that term 

designed to expedite the adoption of the phase-in approach by 

the states into their SIPs. In addition, in the Tailoring Rule, 

EPA identified the air pollutant as the aggregate of the six 

GHGs, again, CO2, CH4, N2O, HFCs, PFCs, and SF6. The Tailoring 

Rule further provided that for purposes of determining whether 
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the amount of GHG emissions exceeds specified thresholds and 

therefore triggers the application of PSD, the amount of 

emissions must be calculated on both a mass basis and, as 

alluded to above, a carbon dioxide equivalent (CO2e) basis. With 

respect to the latter, according to the rule, "PSD * * * 

applicability is based on the quantity that results when the 

mass emissions of each of these gases is multiplied by the 

Global Warming Potential (GWP) of that gas, and then summed for 

all six gases." 75 FR 31518.

Further information on the applicable CAA provisions, the 

Endangerment and Cause or Contribute Findings, the LDRV, the 

Johnson Memo Reconsideration, and the Tailoring Rule is 

contained in the Tailoring Rule and the proposed PSD GHG SIP 

Call.

C. SIP Inadequacy and Corrective Action; Federal 

Implementation Plans

The CAA provides a mechanism for the correction of SIPs 

that are inadequate, under CAA 110(k)(5), which provides: 

(5) Calls for plan revisions

Whenever the Administrator finds that the 

applicable implementation plan for any area is 

substantially inadequate to * * * comply with any 

requirement of this Act, the Administrator shall 

require the State to revise the plan as necessary to 

correct such inadequacies. The Administrator shall 

notify the State of the inadequacies and may establish 

reasonable deadlines (not to exceed 18 months after 
Page 25 of 41

the date of such notice) for the submission of such 

plan revisions.

This provision by its terms authorizes the Administrator to 

"find[] that [a SIP] * * * is substantially inadequate to * * * 

comply with any requirement of this Act," and, based on that 

finding, "require the State to revise the [SIP] * * * to correct 

such inadequacies." This latter action is commonly known as a 

"SIP call." In addition, this provision provides that EPA must 

notify the state of the inadequacies and authorizes EPA to 

establish a "reasonable deadline[] (not to exceed 18 months

after the date of such notice)" for the submission of the 

corrective SIP revision. 

If the state fails to submit the corrective SIP revision by 

the deadline, CAA 110(c) authorizes EPA to "find[] that [the] 

State has failed to make a required submission." CAA 

110(c)(1)(A). Once EPA makes that finding, CAA 110(c)(1) 

requires EPA to "promulgate a Federal implementation plan at any 

time with 2 years after the [finding] * * * unless the State 

corrects the deficiency, and [EPA] approves the plan or plan 

revision, before [EPA] promulgates such [FIP]."

D. States that Do Not Appear to Apply the PSD Program to GHG 

Sources; PSD GHG SIP Call

A number of states do not have an approved PSD SIP; as a 
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result, in these states7 the applicable regulatory authority is 

EPA's regulations, found in 40 CFR 52.21, which constitute a 

FIP. For sources in these states, either the EPA Regional 

Office or the state acting as EPA's delegatee is the permitting 

authority. In these states, EPA's regulations apply directly. 

As a result, the regulations apply the PSD program to any 

constructing or modifying source that emits the requisite 

quantity of any "regulated NSR pollutant," 40 CFR 52.21(b)(50), 

which includes any "pollutant subject to regulation," which, in 

turn, as discussed earlier in this preamble, will cover GHG 

emissions on January 2, 2011. 

All of the other states administer their PSD programs 

through an approved SIP and, as a result, they or their local 

entities are the PSD permitting authority. Of these states, 

most appear to have SIP PSD applicability provisions that 

parallel EPA's regulatory PSD applicability provisions and 

therefore apply PSD to any stationary source that emits the 

 

7 In the following listed state or local jurisdictions, as well 

as in all Indian country, EPA is the PSD permitting authority, 

implementing the federal PSD regulation at 40 CFR 52.21: 

American Samoa; Arizona (some areas); California (most areas); 

District of Columbia; Guam; Massachusetts; New Jersey; New York; 

Northern Mariana Islands; Puerto Rico; Trust Territories; and 

the Virgin Islands. In a smaller number of areas, listed as 

follows, the state or local permitting authority is delegated at 

least partial authority by EPA to implement the federal PSD 

regulation: Arizona (some areas); California (some areas); 

Hawaii; Illinois; Minnesota; Nevada (most areas); Pennsylvania 

(some areas); and Washington.
Page 27 of 41

requisite amount of any air pollutant "subject to regulation." 

As a result, and absent any other provision under state law that 

limits the applicability of these provisions, these PSD SIPs 

will cover GHG sources, just as the current FIPs do, in these 

states, on and after January 2, 2011. Therefore, these states 

or local authorities will be able to act as the permitting 

authority for GHG sources in their states.

As discussed in the PSD GHG SIP Call, it appears, on the 

basis of preliminary research and information received that for 

16 of the states with approved PSD SIPs, the PSD programs do not 

apply to GHG-emitting sources. In many of these SIPs, the PSD 

applicability provisions do not mirror EPA's regulatory 

provisions by applying PSD requirements to sources of any air 

pollutant "subject to regulation." Instead, the applicability 

provisions specifically list the air pollutants to which the PSD 

program applies and do not include GHGs on that list. Although, 

as discussed in the proposed PSD GHG SIP Call, these SIPs may 

have other provisions that provide the state with general 

authority to issue permits that meet CAA requirements, until EPA 

receives more information, we will proceed on the basis that 

these SIPs do not apply their PSD programs to GHG sources. Also 

as discussed in the proposed SIP Call, the state of Connecticut 

explicitly excludes GHGs from the state PSD program. In 
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addition, as discussed in the proposed SIP Call, some states 

with SIP PSD applicability provisions that do mirror EPA's 

regulatory provisions by applying PSD requirements to sources of 

any air pollutant "subject to regulation" nevertheless do not 

appear to apply PSD to GHG-emitting sources because these states 

have other state law constraints against applying state law or

SIP requirements without specific state action authorizing such 

application of law.

In the SIP Call, EPA proposed to find the SIPs for these 16

states to be substantially inadequate, and EPA proposed a SIP 

Call under CAA 110(k)(5). EPA stated that it intends to 

finalize the finding of substantial inadequacy and the SIP Call

by December 1, 2010. EPA further stated that it would allow 

states 12 months from the date of signing the finding and the 

SIP Call for states to submit their corrective SIP revisions,

but that states could indicate to EPA that they do not object to

a shorter deadline, and in that event EPA would impose that 

shorter deadline. 

In the proposed SIP Call, EPA also solicited comment on 

whether the approved SIPs for those other states (listed in 

table II-2 of this preamble, for which EPA was not proposing a 

SIP Call) do or do not apply their PSD programs to GHG-emitting 

sources. EPA asked the other states to review their SIPs and,
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if their SIPs fail to apply PSD to GHG-emitting sources, advise 

EPA by the end of the comment period of the state's inadequacy 

and also inform EPA if they do not object to a shorter deadline 

for submittal of the required corrective SIP revision.

In the proposed SIP Call, we stated that the required 

corrective SIP revision could constitute a simple addition of 

GHGs to the list of pollutants subject to PSD applicability, 

with GHGs defined as the aggregate of six pollutants—CO2, CH4, 

N2O, HFCs, PFCs, and SF6. 

III. Proposed Federal Implementation Plan

In this rulemaking, we propose a FIP, under CAA 

110(c)(1)(A), for any state—if ultimately there is any—for which 

we issue a finding of failure to submit a SIP submission 

required under the PSD GHG SIP Call. 

A. Timing for FIP

If any of the states for which we issue the SIP Call does 

not meet its SIP submittal deadline, we will immediately issue a 

finding of failure to submit a required SIP submission, under 

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

for the state. This timing for FIP promulgation is authorized 

under CAA 110(c)(1), which authorizes us to promulgate a FIP "at 

any time within 2 years after" finding a failure to submit a 

required SIP submission. We intend to take these actions 
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immediately in order to minimize any period of time during which 

larger-emitting sources may be under an obligation to obtain PSD 

permits for their GHGs when they construct or modify, but no 

permitting authority is authorized to issue those permits.

After we have promulgated a FIP, it must remain in place 

until the state submits a SIP revision and we approve that SIP 

revision. CAA 110(c)(1). Under the present circumstances, we 

will act on a SIP revision to apply the PSD program to GHG 

sources as quickly as possible. Upon request of the state, we 

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

submits to us the draft SIP submittal for which the state 

intends to hold a hearing, we will propose the draft SIP 

submittal for approval and open a comment period during the same 

time as the state hearing. If the SIP submittal that the state 

ultimately submits to us is substantially similar to the draft 

SIP submittal, we will proceed to take final action without a 

further proposal or comment period. If we approve such a SIP 

revision, we will at the same time rescind the FIP. 

B. Substance of FIP

The proposed FIP constitutes the EPA regulations found in 

40 CFR 52.21, including the PSD applicability provisions, with a

limitation to assure that, strictly for purposes of this 

rulemaking, the FIP applies only to GHGs. Under the PSD 
Page 31 of 41

applicability provisions in 40 CFR 52.21(b)(50), the PSD program 

applies to sources that emit the requisite amounts of any 

"regulated NSR pollutant[s]," including any air pollutant 

"subject to regulation." However, in states for which EPA would 

promulgate a FIP to apply PSD to GHG-emitting pollutants, the 

approved SIP already applies PSD to other air pollutants. To 

appropriately limit the scope of the FIP, EPA proposes in this 

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

provision to GHGs.

We propose this FIP because it would, to the greatest 

extent possible, mirror EPA regulations (as well as those of 

most of the states). In addition, this FIP would readily 

incorporate the phase-in approach for PSD applicability to GHG 

sources that EPA has developed in the Tailoring Rule and expects

to develop further through additional rulemaking. As explained 

in the Tailoring Rule, incorporating this phase-in approach—

including Steps 1 and 2 of the phase-in as promulgated in the 

Tailoring Rule—can be most readily accomplished through 

interpretation of the terms in the definition "regulated NSR 

pollutant," including the term "subject to regulation."

In accordance with the Tailoring Rule, as described above, 

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

"anyway sources" (that is, sources undertaking construction or 
Page 32 of 41

modification projects that are required to apply for PSD permits 

anyway due to their non-GHG emissions and that emit GHGs in the 

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

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

sources that meet the 100,000/75,000-tpy threshold (that is, (i) 

sources that newly construct and would not be subject to PSD on 

account of their non-GHG emissions, but that emit GHGs in the 

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

that emit GHGs in the amount of at least 100,000 tpy CO2e, that 

undertake modifications that would not trigger PSD on the basis 

of their non-GHG emissions, but that increase GHGs by at least 

75,000 tpy CO2e). 

Under the FIP, with respect to permits for "anyway 

sources," EPA will be responsible for acting on permit 

applications for only the GHG portion of the permit, and the 

state will retain responsibility for the rest of the permit. 

Likewise, with respect to permits for sources that meet the 

100,000/75,000-tpy threshold, our preferred approach—for reasons 

of consistency—is that EPA will be responsible for acting on

permit applications for only the GHG portion of the permit, that 

the state permitting authorities will be responsible for the 

non-GHG portion of the permit, and EPA will coordinate with the 

state permitting authority as needed in order to fully cover any 
Page 33 of 41

non-GHG emissions that, for example, are subject to BACT because 

they exceed the significance levels. We recognize that 

questions may arise as to whether the state permitting 

authorities have authority to permit non-GHG emissions; as a 

result, we solicit comment on whether EPA should also be the 

permitting authority for the non-GHG portion of the permit for 

these latter sources.

We propose that the FIP consist of the regulatory 

provisions included in 40 CFR 52.21, except that the 

applicability provision would include a limitation so that it 

applies for purposes of this rulemaking only to GHGs.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866 - Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 

1993), this action is a "significant regulatory action" because 

it raises novel legal or policy issues. Accordingly, EPA 

submitted this action to the Office of Management and Budget 

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

to OMB recommendations have been documented in the docket for 

this action.

B. Paperwork Reduction Act

This action does not impose any new information collection 

burden. This proposed action would establish EPA as the 
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permitting authority in certain states for PSD GHG permits. The 

OMB has previously approved the information collection 

requirements contained in the existing regulations for PSD (see,

e.g., 40 CFR 52.21) and title V (see 40 CFR parts 70 and 71) 

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

3501 et seq. and has assigned OMB control number 2060-0003 and 

OMB control number 2060-0336 respectively. The OMB control 

numbers for EPA's regulations in 40 CFR are listed in 40 CFR 

part 9.

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an 

agency to prepare a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant 

economic impact on a substantial number of small entities. 

Small entities include small businesses, small organizations, 

and small governmental jurisdictions.

For purposes of assessing the impacts of this notice on 

small entities, small entity is defined as: (1) a small business 

that is a small industrial entity as defined in the U.S. Small 

Business Administration (SBA) size standards (see 13 CFR 

121.201); (2) a small governmental jurisdiction that is a 
Page 35 of 41

government of a city, county, town, school district, or special 

district with a population of less than 50,000; or (3) a small 

organization that is any not-for-profit enterprise that is 

independently owned and operated and is not dominant in its 

field.

After considering the economic impacts of this proposed 

rule on small entities, I certify that this action will not have 

a significant economic impact on a substantial number of small 

entities. Although this rule would lead to federal permitting 

requirements for certain sources, those sources are large 

emitters of GHGs and tend to be large sources. We continue to 

be interested in the potential impacts of the proposed rule on 

small entities and welcome comments on issues related to such 

impacts.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the 

provisions of Title II of the Unfunded Mandates Reform Act of 

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

governments or the private section. The action imposes no 

enforceable duty on any state, local or tribal governments or 

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

for states that do not meet their existing obligation for PSD 

SIP submittal. Thus, this proposed rule is not subject to the 
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requirements of sections 202 or 205 of UMRA.

This action is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 

requirements that might significantly or uniquely affect small 

governments. This action merely prescribes EPA's action for 

states that do not meet their existing obligation for PSD SIP 

submittal.

E. Executive Order 13132 - Federalism

This action does not have federalism implications. It will 

not have substantial direct effects on the states, on the 

relationship between the national government and the states, or 

on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

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

that do not meet their existing obligation for PSD SIP 

submittal. 

In the spirit of Executive Order 13132, and consistent with 

EPA policy to promote communications between EPA and state and 

local governments, EPA specifically solicits comment on this 

proposed rule from state and local officials.

F. Executive Order 13175 - Consultation and Coordination with 

Indian Tribal Governments

This action does not have tribal implications, as specified 
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in Executive Order 13175 (65 FR 67249, November 9, 2000). This 

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

Executive Order 13175 does not apply to this action. 

Although Executive Order 13175 does not apply to this 

proposed rule, EPA specifically solicits additional comment on 

this proposed action from tribal officials. 

G. Executive Order 13045 - Protection of Children from 

Environmental Health Risks and Safety Risks

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

applying only to those regulatory actions that concern health or 

safety risks, such that the analysis required under section 5-

501 of the EO has the potential to influence the regulation. 

This action is not subject to EO 13045 because it merely 

prescribes EPA's action for states that do not meet their 

existing obligation for PSD SIP submittal. 

H. Executive Order 13211 - Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

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

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

is not likely to have a significant adverse effect on the 

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

prescribes EPA's action for states that do not meet their 

existing obligation for PSD SIP submittal. 
Page 38 of 41

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 ("NTTAA"), Public Law No. 104-113, 12(d) 

(15 U.S.C. 272 note) directs EPA to use voluntary consensus 

standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not 

to use available and applicable voluntary consensus standards. 

This proposed rulemaking does not involve technical 

standards. Therefore, EPA is not considering the use of any 

voluntary consensus standards.

J. Executive Order 12898 - Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) 

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 
Page 39 of 41

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the U.S.

EPA has determined that this proposed rule will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it does not affect the level of protection provided to 

human health or the environment. This proposed rule merely 

prescribes EPA's action for states that do not meet their 

existing obligation for PSD SIP submittal.

K. Determination under Section 307(d)

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

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

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

apply to "the promulgation or revision of an implementation plan 

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

V. Statutory Authority

The statutory authority for this action is provided by 

sections 307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as 

amended (42 U.S.C. 7401, 7411, 7414, 7416, and 7601). This 

action is also subject to section 307(d) of the CAA (42 U.S.C. 

7407(d)).
Page 40 of 41

Page 40 of 41 – Action to Ensure Authority to Issue Permits under 

the Prevention of Significant Deterioration Program to Sources 

of Greenhouse Gas Emissions: Federal Implementation Plan

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, Carbon dioxide 

equivalents, Carbon monoxide, Environmental protection, 

Greenhouse gases, Hydrofluorocarbons, Intergovernmental 

relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, 

Ozone, Particulate matter, Perfluorocarbons, Reporting and 

recordkeeping requirements, Sulfur hexafluoride, Sulfur oxides, 

Volatile organic compounds.

________________________ 

Dated: 

_________________________ 

Lisa P. Jackson, 

Administrator.
Page 41 of 41

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

the Code of Federal Regulations is proposed to be amended as 

follows:

PART 52 - [Amended]

Each of the appropriate subparts of part 52, which are the 

subparts for the states for which EPA proposes the FIP, will 

include the following provision in the appropriate place among 

the subpart’s PSD requirements: 

§52.[XXX] The requirements of sections 160 through 165 of 

the Clean Air Act are not met to the extent the [name of state] 

plan, as approved, does not apply with respect to GHG emissions 

from certain stationary sources. Therefore, the provisions of 

§52.21 except paragraph (a)(1) are hereby incorporated by 

reference and made a part of the [name of state] plan for:

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

stationary sources described in §52.21(b)(49)(iv), and 

(b) beginning July 1, 2011, in addition to the pollutant 

described under subsection (a), 

[Alternative 1] the pollutant GHGs from stationary sources 

described in §52.21(b)(49)(v)

[Alternative 2] beginning July 1, 2011, stationary sources 

described in §52.21(b)(49)(iv).