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6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 70

[EPA-HQ-OAR-2009-0517; FRL-xxxx-x]

RIN 2060-AQ63

Action to Ensure Authority to Implement Title V Permitting 

Programs under the Greenhouse Gas Tailoring Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

SUMMARY: The final greenhouse gas (GHG) Tailoring Rule includes 

a step-by-step implementation strategy for issuing federallyenforceable permits to the largest, most environmentally

significant sources beginning January 2, 2011. In this action, 

EPA is finalizing its proposed rulemaking to narrow EPA’s 

previous approval of state title V operating permit programs 

that apply (or may apply) to GHG-emitting sources. 

Specifically, in this final rule, EPA is limiting its previous 

approval of certain state permitting thresholds for GHG 

emissions so that only sources that equal or exceed the GHG 

thresholds established in the final Tailoring Rule would be 

covered as major sources by the federally-approved programs in 

the affected states. By raising the GHG thresholds that apply 

title V permitting to major sources in the affected states, this 

final rule will reduce the number of sources that will be issued 
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federally-enforceable title V permits and thereby significantly 

reduce permitting burdens for permitting agencies and sources 

alike in those states.

DATES: This final rule is effective on [insert date of 

publication in Federal Register].

ADDRESSES: EPA has established a docket for this action under 

Docket ID No. EPA-HQ-OAR-2009-0517. All documents in the docket 

are listed on the www.regulations.gov Web site. 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, 

is not placed on the Internet and will be publicly available 

only in hard copy form. Publicly available docket materials are 

available either electronically through www.regulations.gov or 

in hard copy at the EPA Docket Center EPA/DC, EPA West, Room 

3334, 1301 Constitution Avenue, Northwest, 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 EPA Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Jeff Herring, Air Quality 

Policy Division, Office of Air Quality Planning and Standards 

(C504-03), Environmental Protection Agency, Research Triangle 
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Park, NC 27711; telephone number: (919) 541-3195; fax number: 

(919) 541-5509; e-mail address: herring.jeff@epa.gov.

SUPPLEMENTARY INFORMATION: For information related to a 

specific state, local, or tribal permitting authority, please 

contact the appropriate EPA regional office:

EPA 

regional 

office

Contact for regional office 

(person, mailing address, 

telephone number) Permitting authority

I Dave Conroy, Chief, Air 

Programs Branch, EPA Region 1, 

5 Post Office Square, Suite 

100, Boston, MA 02109-3912, 

(617) 918-1661.

Connecticut, 

Massachusetts, Maine, 

New Hampshire, Rhode 

Island, and Vermont.

II Raymond Werner, Chief, Air 

Programs Branch, EPA Region 2, 

290 Broadway, 25th Floor, New 

York, NY 10007-1866, (212) 

637-3706.

New Jersey, New York, 

Puerto Rico, and Virgin 

Islands.

III Kathleen Cox, Chief, Permits 

and Technical Assessment 

Branch, EPA Region 3, 1650 

Arch Street, Philadelphia, PA 

19103-2029, (215) 814-2173. 

District of Columbia, 

Delaware, Maryland, 

Pennsylvania, Virginia, 

and West Virginia.

IV Lynorae Benjamin, Chief, 

Regulatory Development Branch, 

Air, Pesticides and Toxics 

Management Division, EPA 

Region 4, Atlanta Federal 

Center, 61 Forsyth Street, SW, 

Atlanta, GA 30303-3104, (404) 

562-9033.

Alabama, Florida, 

Georgia, Kentucky, 

Mississippi, North 

Carolina, South 

Carolina, and 

Tennessee.

V J. Elmer Bortzer, Chief, Air 

Programs Branch (AR-18J), EPA 

Region 5, 77 West Jackson 

Boulevard, Chicago, IL 60604-

3507, (312) 886-1430.

Illinois, Indiana, 

Michigan, Minnesota, 

Ohio, and Wisconsin.
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VI Jeff Robinson, Chief, Air 

Permits Section, EPA Region 6, 

Fountain Place 12th Floor, 

Suite 1200, 1445 Ross Avenue, 

Dallas, TX 75202-2733, (214) 

665-6435.

Arkansas, Louisiana, 

New Mexico, Oklahoma, 

and Texas.

VII Mark Smith, Chief, Air 

Permitting and Compliance 

Branch, EPA Region 7, 901 

North 5th Street, Kansas City, 

KS 66101, (913) 551-7876.

Iowa, Kansas, Missouri, 

and Nebraska.

VIII Carl Daly, Unit Leader, Air 

Permitting, Monitoring &

Modeling Unit, EPA Region 8, 

1595 Wynkoop Street, Denver, 

CO 80202-1129, (303) 312-6416.

Colorado, Montana, 

North Dakota, South 

Dakota, Utah, and 

Wyoming.

IX Gerardo Rios, Chief, Permits 

Office, EPA Region 9, 75 

Hawthorne Street, San 

Francisco, CA 94105, (415) 

972-3974.

Arizona; California; 

Hawaii and the Pacific 

Islands; Indian Country 

within Region 9 and 

Navajo Nation; and 

Nevada.

X Nancy Helm, Manager, Federal 

and Delegated Air Programs 

Unit, EPA Region 10, 1200 

Sixth Avenue, Suite 900, 

Seattle, WA 98101, (206) 553-

6908.

Alaska, Idaho, Oregon, 

and Washington.

I. General Information

A. Does this action apply to me?

Entities affected by this action include states, local 

permitting authorities, and tribal authorities.

Entities potentially affected by this rule also include 

sources in all industry groups, which have a direct obligation 

under the Clean Air Act (CAA or Act) to apply for and operate 

pursuant to a title V permit for GHGs that meet the 

applicability thresholds set forth in the Tailoring Rule. The 
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majority of entities potentially affected by this action are 

expected to be in the following groups:

Industry Group NAICSa

Agriculture, fishing,

and hunting...................................................... 11

Mining..................................................................... 21

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
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Machinery

Manufacturing................................................ 3331, 3332, 3333, 3334, 3335, 

 3336, 3339

Computer and

electronic products

manufacturing................................................ 3341, 3342, 3343, 3344, 3345

 4446

Electrical equipment,

appliance, and

component

manufacturing................................................ 3351, 3352, 3353, 3359

Transportation

Equipment

manufacturing................................................ 3361, 3362, 3363, 3364, 3365,

 3366, 3366, 3369

Furniture and related

Product

Manufacturing................................................ 3371, 3372, 3379

Miscellaneous

Manufacturing................................................ 3391, 3399

Waste management and

remediation...................................................... 5622, 5629

Hospitals/Nursing and

residential care

facilities......................................................... 6221, 6231, 6232, 6233, 6239

Personal and laundry

Services............................................................... 8122, 8123

Residential/private

Households ...................................................... 8141

Non-Residential

Commercial)...................................................... Not available. Codes only

 exist for private households,

construction, and leasing/

sales industries

---------------------------------------------------------------

a North American Industry Classification System.
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B. How is this Preamble Organized?

The information presented in this preamble is organized as 

follows:

I. General Information

A. Does this action apply to me?

B. How is this preamble organized?

II. Overview of the Final Rule

III. Proposed Rule

IV. Final Rule

A. Action

B. Legal Basis

1. Title V Applicability

2. Minimum Requirements for Approved Title V Programs

3. Basis for Reconsideration and Narrowing of 

Approval

C. Authority for EPA Action

V. Comments and Responses

VI. Effective Date

VII. Statutory and Executive Orders Reviews 

A. Executive Order 12866 - Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132 – Federalism

F. Executive Order 13175 - Consultation and Coordination 

with Indian Tribal Governments

G. Executive Order 13045 - Protection of Children from 

Environmental Health and Safety Risks

H. Executive Order 13211 - Actions 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. Congressional Review Act

L. Judicial Review

II. Overview of the Final Rule

This action finalizes EPA’s proposal to limit the approval 

of title V operating permit programs that we included in what we 

call the proposed Tailoring Rule, “Prevention of Significant 
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Deterioration and Title V Greenhouse Gas Tailoring Rule: 

Proposed Rule,” 74 FR 55292, 55340 (October 27, 2009). EPA 

finalized the Tailoring Rule by Federal Register notice dated 

June 3, 2010, “Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule: Final Rule,” 75 FR 31,514. 

In the final Tailoring Rule, EPA limited the applicability 

of title V to GHG-emitting sources at or above specified 

thresholds by setting thresholds at which GHG emissions become 

subject to regulation for Prevention of Significant 

Deterioration (PSD) and title V purposes1

requirement applies to emissions of air pollutants “subject to 

regulation.” Absent the Tailoring Rule, GHGs would become 

“subject to regulation” for title V purposes on January 2, 2011. 

Under the Tailoring Rule, however, a source becomes a “major 

source” subject to title V requirements based on its GHG 

. Title V requires all 

“major sources,” and certain other sources, to apply for and 

operate pursuant to an operating permit, which is generally 

issued by a state or local permitting authority pursuant to an 

approved state title V program. As discussed in more detail 

subsequently, “major source” under title V includes any source 

that emits, or has the potential to emit, 100 tons per year 

(tpy) or more of any air pollutant. Under EPA’s longstanding 

interpretation, codified in the final Tailoring Rule, this 

 1 Only the title V provisions are relevant for this action. 
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emissions only if, as of July 1, 2011, it emits GHGs at or above 

100,000 tpy measured on a carbon dioxide equivalent (CO2e) basis, 

and it also emits GHGs at levels at or above the statutory 100 

tpy mass-based threshold generally applicable to all pollutants

subject to regulation. The Tailoring Rule thresholds alleviate 

the overwhelming administrative burdens and costs that using the 

statutory thresholds alone for the permitting thresholds would 

place on title V permitting authorities and sources. 

However, in proposing the Tailoring Rule, EPA recognized 

that even after it finalized the Tailoring Rule, some approved 

state title V programs would –– until they were revised ––

continue to use the statutory thresholds for purposes of the 

permitting thresholds, even though the states would not have 

sufficient resources to implement the title V program at those 

levels. Accordingly, the proposed Tailoring Rule included a 

proposal to limit EPA’s previous approval of title V programs to 

the extent those provisions required permits for sources whose 

emissions of GHG equal or exceed 100 tpy but are less than the 

permitting threshold of the Tailoring Rule.2

 2 The permitting threshold originally proposed for the Tailoring 

Rule was 25,000 tpy CO2e. After considering public comment on 

the proposal, EPA increased its estimates of the costs and 

burdens of permitting and finalized a permitting threshold of 

100,000 tpy CO2e.

 When EPA finalized 

the Tailoring Rule, EPA did not finalize that part of the 

proposal. Instead, EPA waited to collect more information from 
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the states to determine whether such action was necessary, and 

if so, for which states. As detailed in the following, EPA is 

now finalizing that part of the Tailoring Rule proposal for most 

permitting authorities. 

EPA asked states to submit information –– in the form of 

letters due within 60 days of publication of the Tailoring Rule 

(which we refer to as the 60-day letters) -- that would help EPA 

determine whether it needed to limit its approval of any title V 

programs. [placeholder for interpreting states] informed EPA in 

their “60 day letters” that they have adequate authority to 

issue permits to sources of GHGs and that they have interpreted 

the requirements of their approved title V programs consistent 

with the final Tailoring Rule thresholds. Other states and 

permitting authorities either indicated that their programs 

would require changes to permit GHG sources at the final 

Tailoring Rule thresholds, or did not provide a clear indication 

of the scope of their title V programs with respect to GHG 

sources.

Thus, in this action, EPA is limiting its previous approval 

of most state title V programs to the extent the programs 

require title V permits for sources of GHG emissions below the 

Tailoring Rule thresholds. The other portions of these title V 

programs, including portions requiring permits for GHG-emitting 

sources with emissions at or above the Tailoring Rule 
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thresholds, remain approved. States affected by this rule will 

not be required to take any action as a result of this rule.

The effect of EPA narrowing its approval in this manner is 

that there will be no federally-approved title V program that 

requires permits for sources due to emissions of GHG below the 

final Tailoring Rule threshold of 100,000 tpy CO2e (and 100 tpy 

mass basis), which takes effect on July 1, 2011. This action 

ensures that the federally-approved programs applicable in the 

affected states do not require title V permitting for sources 

with GHG emissions below the final Tailoring Rule thresholds as 

of January 2, 2011. 

III. Proposed Rule

We assume familiarity here with the statutory and 

regulatory background discussed in the preambles for the 

Tailoring Rule proposal and final action, and will only briefly 

summarize that background here.

Title V of the CAA requires, among other things, a “major 

source” to obtain an operating permit that: consolidates all CAA

requirements applicable to the source into a document; includes 

conditions necessary to assure compliance with such 

requirements; provides for review of these documents by EPA, 

states, and the public; and requires permit holders to track, 

report, and annually certify their compliance status with 

respect to their permit requirements. 
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A “major source” is defined to include, among other things, 

a source that actually emits or has the potential to emit 100 

tpy or more of “any air pollutant.” CAA sections 501(2), 302(j). 

See also 40 CFR 70.2 and 71.2. Since 1993, EPA has interpreted 

the CAA to define a “major source” for purposes of title V to 

include any source that emits, or has the potential to emit, at 

least 100 tpy of an air pollutant subject to regulation under 

the CAA. Memorandum from Lydia N. Wegman, Deputy Director, 

Office of Air Quality Planning and Standards, U.S. EPA, 

“Definition of Regulated Air Pollutant for Purposes of Title V” 

(Apr. 26, 1993); 75 FR 31553-54.

In recent months, EPA completed four distinct actions 

related to regulation of GHGs under the CAA. These actions 

include, as they are commonly called, the "Endangerment Finding" 

and "Cause or Contribute Finding," which we issued in a single 

final action,3 the "Johnson Memo Reconsideration" (also called 

the “Timing Decision”),4

 3 "Endangerment and Cause or Contribute Findings for Greenhouse 

Gases Under Section 202(a) of the Clean Air Act." 74 FR 66,496 

(December 15, 2009).

the "Light-Duty Vehicle Rule” (LDVR, or 

4 "Interpretation of Regulations that Determine Pollutants 

Covered by Clean Air Act Permitting Programs." 75 FR17,004 

(April 2, 2010). This action finalizes EPA's response to a 

petition for reconsideration of "EPA's Interpretation of 

Regulations that Determine Pollutants Covered by Federal 

Prevention of Significant Deterioration (PSD) Permit Program" 

(commonly referred to as the "Johnson Memo"), December 18, 2008.
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simply the “Vehicle Rule”),5 and the "Tailoring Rule."6

 5 "Light-Duty Vehicle Greenhouse Gas Emission Standards and 

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

25,324 (May 7, 2010).

 In the 

Endangerment Finding, which is governed by CAA § 202(a), the 

Administrator exercised her judgment, based on an exhaustive 

review and analysis of the science, to conclude that “six 

greenhouse gases taken in combination endanger both the public 

health and the public welfare of current and future 

generations.” 74 FR 66,496. The Administrator also found “that 

the combined emissions of these greenhouse gases from new motor 

vehicles and new motor vehicle engines contribute to the 

greenhouse gas air pollution that endangers public health and 

welfare under CAA section 202(a).” Id. The Endangerment 

Finding led directly to promulgation of the Vehicle Rule, also 

governed by CAA § 202(a), in which EPA set standards for the 

emission of GHGs for new motor vehicles built for model years 

2012-2016. 75 FR 25,324. The other two actions, the Timing 

Decision and the Tailoring Rule, governed by the PSD and title V 

provisions in the CAA, were issued to address the automatic 

statutory triggering of these programs for GHGs due to the 

establishment of the first controls for GHGs under the Act. 

More specifically, the Timing Decision reiterated EPA’s 

interpretation that only pollutants subject to regulation under 

6 "Prevention of Significant Deterioration and Title V Greenhouse 

Gas Tailoring Rule; Final Rule." 75 FR31,514 (June 3, 2010).
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the Act can trigger major source status for purposes of title V, 

and further concluded that the earliest date GHG would be 

subject to regulation for purposes of title V would be January 

2, 2011. The Tailoring Rule established a series of steps by 

which PSD and title V permit requirements for GHG could be 

phased in, starting with the largest sources of GHG emissions. 

75 FR 31,514. 

In the proposed Tailoring Rule, EPA proposed a major 

stationary source threshold for purposes of title V of 25,000 

tpy for GHG on a CO2e basis, for at least a specified period. 

EPA recognized that even so, approved state title V programs 

would –– until they were revised –– continue to use the 

statutory threshold of 100 tpy for GHG on a mass basis for 

purposes of the permitting threshold, even though permits for 

sources below the Tailoring Rule threshold were not required 

under federal regulations and the states would not have 

sufficient resources to implement the title V program at the 

statutory threshold for GHG-emitting sources. This would result 

in the same problems of overwhelming administrative burdens and 

costs that we designed the Tailoring Rule to address. 

Accordingly, the proposed Tailoring Rule included a proposal to 

limit EPA’s previous approval of title V programs to the extent 

those provisions required permits for sources whose emissions of 

GHG equal or exceed 100 tpy but are less than the permitting 
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threshold of the Tailoring Rule.

EPA relied for its authority for the proposed limitations 

of approval on CAA section 301(a), as it incorporates the 

authority of an agency to reconsider its actions, and in the 

Administrative Procedures Act (APA) section 553. EPA indicated 

in the proposal that it considered and decided against issuing a 

notice of deficiency under CAA section 502(i)(1), in part 

because EPA did not anticipate that program submissions would be 

necessary following EPA’s action to limit approvals. 74 FR 

55345-55346. 

In the final Tailoring Rule, EPA adopted a 100,000 tpy CO2e 

permitting threshold for title V permitting of GHG emissions as 

of July 1, 2011, committed the agency to take future steps 

addressing smaller sources, and excluded the smallest sources 

from title V permitting for GHG emissions until at least April 

30, 2016.

The mechanism EPA chose in the final rule to implement the 

100,000 tpy CO2e threshold for GHG emissions was slightly 

different than what EPA had proposed. In response to comments 

from States, in place of providing a definition in part 70 of 

“major source” with thresholds specific to GHG sources, the 

final Tailoring Rule amended the definition of “major source” to 

reflect EPA’s long-standing interpretation that applicability 

for “major stationary source” under CAA sections 501(2)(B) and 
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302(j) and 40 CFR 70.2 and 71.2 is triggered by sources of 

pollutants “subject to regulation.” EPA then reflected the 

permitting thresholds for GHGs within a definition of the term 

“subject to regulation” that was also added to parts 70 and 71. 

Some states advised EPA that they would likely be able to 

implement the Tailoring Rule thresholds by interpreting 

provisions in their approved title V programs. A state’s 

implementation of the Tailoring Rule in this manner would 

obviate the need for EPA to limit its approval of the state’s 

title V program. Thus, in the final Tailoring Rule, EPA 

deferred making any decision regarding whether to narrow its 

approval of any title V programs until after learning how states 

intended to implement the Tailoring Rule. Rather than taking 

final action on our proposal to limit approval for state title V 

programs, EPA asked states to submit information –– in the form 

of letters due within 60 days of publication of the final 

Tailoring Rule (which we refer to as the 60-day letters) -- that 

would help EPA determine what action it would need to take to 

ensure that GHG sources would be permitted consistent with the 

final Tailoring Rule, and specifically for which states it would 

need to limit its approval of state title V programs. 

Almost all states submitted 60-day letters. After 

reviewing the letters, the following states [list interpreting 

states here] have indicated that they have been able to 
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interpret their existing approved title V programs in a manner 

consistent with the final Tailoring Rule. Other permitting 

authorities indicated that they needed regulatory or legislative 

changes either to implement title V permitting for GHG sources, 

or else to apply the final Tailoring Rule thresholds when they 

implement title V permitting for GHG sources. Some states 

indicated that some regulatory or legislative changes to their 

title V programs were necessary, but did not clearly indicate 

which types of changes were required. In some cases, the 

state’s 60-day letter addressed PSD permitting but not title V 

permitting, or else did not clearly distinguish between the two 

programs in discussing how the state intended to implement 

permitting of GHG sources. Finally, a few states did not submit 

60-day letters.

Most states that need to take some action indicated that 

they were actively in the process of updating their title V 

programs to be consistent with the final Tailoring Rule. 

Indeed, many programs were projected, as of the date of the 60-

day letter, to be revised to incorporate the Tailoring Rule 

threshold at the state level before January 2, 2011. 

IV. Final Rule

A. Action

EPA is taking final action to limit its approval of the 

title V program for certain states. In the final Tailoring 
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Rule, EPA established levels of GHG emissions for purposes of 

determining applicability of title V. However, most EPAapproved state title V programs currently provide that sources 

of GHGs will become subject to title V requirements even where 

the sources emit GHGs below the final Tailoring Rule thresholds.

Under the final Tailoring Rule, GHGs emitted below the Tailoring 

Rule thresholds are not treated as a pollutant “subject to 

regulation” under the CAA (and thus, under the final Tailoring 

Rule, a source emitting GHGs below the Tailoring Rule thresholds 

would not be treated as a major stationary source subject to 

title V on account of its GHG emissions). Thus, EPA is now 

narrowing its approval of most approved title V programs so that 

those title V programs are approved to apply to GHG-emitting 

sources only if those sources emit GHGs at or above the final 

Tailoring Rule thresholds. EPA is accomplishing this narrowing 

by limiting its previous approval of those title V programs to 

the extent they apply to GHG-emitting sources that emit below 

the final Tailoring Rule thresholds. 

In the proposed Tailoring Rule, EPA proposed to narrow its 

approval for all 50 states, as well as the District of Columbia, 

Puerto Rico, and the U.S. Virgin Islands.7

 7 40 CFR 70.2 defines “state” to include any non-federal 

permitting authority, including local, interstate and statewide 

permitting authorities, and also including the District of 

Columbia, the Commonwealth of Puerto Rico, and U.S. territories, 

 EPA now finalizes 
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this narrowing of approval for the states with title V programs 

that will apply to GHG emissions at below-Tailoring Rule levels 

as of January 2, 2011, and for states that EPA cannot clearly 

determine do not fall in this category. The states for whom EPA 

is narrowing its approval of the title V program in this action 

are: [state with GHG authority for small sources, states whose 

status is ambiguous] For all the other states -- states with no 

authority to regulate GHG or states which apply the Tailoring 

Rule thresholds by interpretation -- EPA is not taking final 

action on its proposal to narrow its approval of the title V 

program at this time because those states will not subject GHG 

sources with emissions below the Tailoring Rule thresholds to 

the requirements of title V on January 2, 2011. 

B. Legal Basis 

EPA is limiting its previous approval for most state title 

V programs because of an important flaw in the approved title V 

programs. EPA is rescinding its previous approval for the part 

of the title V program that is flawed, and EPA is leaving in 

place its previous approval for the rest of the program. Since 

there is no need under federal law to permit sources below the 

final Tailoring Rule threshold, the title V programs whose 

 

although “[w]here such meaning is clear from the context, 

‘State’ shall have its conventional meaning.” This notice 

follows the same approach to the use of the term “state.”
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approval is being narrowed by this action will continue to be 

fully approved under CAA section 502.

Among the minimum requirements for a title V program are 

those for “adequate personnel and funding to administer the 

program.” CAA section 502(b)(4). These requirements need to be 

understood in context of Congress’ clear concern for “the need 

for expeditious action by the permitting authority on permit 

applications and related matters.” CAA section 502(b)(8); see 

also CAA sections 502(b)(6), 502(b)(7), & 503(c), 40 CFR 

70.4(b)(8).

The flaw in the prior approved programs is that certain 

program provisions were phrased so broadly that they could, 

under certain circumstances, sweep in more sources than the 

permitting authority could process in an expeditious manner in 

light of the resources that were available or could be made 

available. Thus, EPA is narrowing the scope of its approval of 

those title V provisions to include, for purposes of GHG 

emissions, only title V permitting for sources emitting GHGs at 

or above final Tailoring Rule thresholds. EPA believes 

regulating at these thresholds will require resources at a level 

consistent with the descriptions of adequate resources the state 

provided, and EPA determined in the final Tailoring Rule that 

states will have adequate resources to issue operating permits 

to sources emitting GHGs at this level. 
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EPA is narrowing its approval of the title V programs for 

all states that have indicated that they have authority under 

their title V programs to regulate GHG emissions, but at the 

statutory level of 100 tpy or more on a mass emissions basis. 

As a precautionary measure, EPA is also narrowing its approval 

for states that EPA has not clearly determined are not in this 

situation. EPA recognizes that the actual status of the states 

subject to this rule varies to some degree; while some states 

have authority to regulate GHGs under their title V programs but 

at the statutory threshold only, other states may have been able 

to alter their state regulations but have not yet submitted such

changes or had them approved by EPA, and still other states 

failed to provide a 60-day letter with sufficient information to 

determine the status of their title V permit programs in 

relation to GHG sources. EPA believes it is appropriate to 

narrow the approved title V program for all of these states. In 

the case of programs that have made state-level changes but have 

not yet received EPA approval for those changes, this approach 

provides an efficient means of ensuring that at no time is there 

a requirement under a federally-approved program for sources 

below the final Tailoring Rule threshold to obtain a permit. 

For this reason, as a precautionary matter, EPA is narrowing 

approval for states that did not inform us that they can 
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implement the thresholds in the final Tailoring Rule under their 

current approved programs. 

Some states may lack authority to require permits for GHG 

sources at all. Where there is clear and unambiguous evidence 

that such state programs do not require permits for any sources 

due to their status as a major source of GHG emissions, EPA is 

not narrowing such programs, because they do not present the 

flaw discussed previously.8

 8 If a state with an approved title V program lacks any authority 

to permit sources that are major sources subject to title V as a 

result of their GHG emissions, then there is no title V permit 

program "applicable to the source" and those sources in that 

state have no obligation to apply for a title V permit until 

after such time as a permit program becomes applicable to them. 

See CAA section 503(a). EPA intends to work with states, 

through program revisions, notices of deficiency and/or 

application of the federal title V program, in order to assure 

that major sources of GHGs in all states are subject to title V 

programs. 

 There may be some states that 

similarly lack authority to issue title V permits to sources due 

to their status as major sources of GHG emissions, but have not 

clearly articulated that fact to EPA in their 60-day letters. 

EPA intends to narrow its approval for all states where the 

status of the title V program in relation to major sources of 

GHG is unclear. Although it may turn out that some of these 

programs do not present the flaw discussed previously, EPA is 

only limiting its approval of programs “to the extent” they 

require sources of GHG in excess of the threshold to apply for 

title V permits as major sources of GHG. Thus, if indeed a 
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state’s program does not require permits for these sources at 

all, there are no consequences to sources or the permitting 

authority from EPA’s decision to narrow the scope of the state’s 

approval.9

The following section discusses these issues in more 

detail, beginning with the title V applicability provisions; 

then the minimum state program requirements; and then how the 

two, read together, gave rise to the flaws in the approved state 

title V programs.

 On the other hand, if EPA were to refrain from 

narrowing its approval, and then learn that the program indeed 

does require sources that emit or have the potential to emit 100 

tpy or more of GHGs on a mass basis to apply for title V 

permits, there would be significant adverse consequences for the 

permitting authority and sources, as described previously in 

this final rule and in the final Tailoring Rule. Accordingly, 

EPA is refraining from narrowing the title V programs for states 

that cannot implement the Tailoring Rule thresholds only if EPA 

is certain that those state programs do not require permits for 

sources due to their emissions of GHG.

1. Title V Applicability

 9 Likewise, if a state failed to provide information to EPA in a 

60-day letter and it turned out that the state could apply the 

permitting thresholds of the final Tailoring Rule under its 

existing approved title V program, there would be no harm to the 

permitting authority or sources as a result of EPA’s decision to 

narrow its approval consistent with the final Tailoring Rule 

thresholds.
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Each of the states subject to this rule has an approved 

title V operating permits program and has not clearly indicated 

to EPA that it has the ability to permit sources of GHG 

consistent with the thresholds in the final Tailoring Rule. In 

most of these states the approved title V program contains 

provisions that specify which pollutants will be considered in 

determining whether a source is a major source covered by the 

title V operating permits program –– which we will refer to as 

applicability provisions –– and that are written broadly to 

include all pollutants subject to regulation under the CAA. As 

a result, as soon as EPA promulgates a rule regulating a new 

pollutant under any provision of the CAA, these title V programs 

expand to cover additional sources that are major for that new 

pollutant. Depending on the pollutant, and the number and size 

of sources that emit it, these applicability provisions could 

result in a required significant and rapid expansion of the 

title V program. This is precisely what is happening at 

present, now that GHG will become subject to regulation under 

CAA section 202(a) and will become subject to PSD when emitted 

from certain stationary sources starting on January 2, 2011.

Importantly, the states affected by this action do not 

interpret their applicability provision or any other provision 

in the title V programs to incorporate any limits on title V 

applicability with respect to new pollutants, and the programs 
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do not contain any other mechanism that would allow the state to 

interpret applicability more narrowly, at least for GHGs. As a 

result, the affected states’ title V applicability provisions 

include no way to limit the speed or extent of the expansion a 

title V program might be required to undergo to regulate new 

pollutants.

This sudden expansion of permitting responsibilities is 

precisely what is now happening in the case of GHGs. As 

described in the Timing Decision and final Tailoring Rule, GHG 

will become subject to regulation on January 2, 2011. EPA 

defined GHGs as the group of six air pollutants made up of 

carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, 

hydrofluorocarbons, and perfluorocarbons. 75 FR 31514, 31519 

(June 3, 2010) (Tailoring Rule discussion); 75 FR 25324 (May 7, 

2010) (LDVR). Absent the limits of the final Tailoring Rule, 

sources that emit or have the potential to emit at least 100 tpy 

of GHGs would be potentially subject to title V permitting as of 

that date. EPA does not have information showing that the 

approved title V programs in states subject to this rule can 

interpret their programs more narrowly, to apply to only GHGemitting sources at or above the final Tailoring Rule 

thresholds. In contrast, as noted elsewhere, several other 

states are able to interpret their title V programs more 

narrowly and, as a result, are not subject to this action.
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The scale of the administrative program needed to 

effectively permit all sources emitting GHGs at the 100 tpy 

level has highlighted the unconstrained nature of the title V 

program’s applicability provisions. EPA has recognized that 

immediately subjecting major sources of GHGs at the 100 tpy 

level to title V requirements is administratively unmanageable 

and creates absurd results that were not intended by Congress 

when it enacted title V. Thus, in the final Tailoring Rule, EPA 

implemented limits on when GHGs become “subject to regulation” 

for purposes of title V, such that emissions of GHGs will not 

trigger major source status, and thus will not trigger title V 

permit requirements, unless the source emits both 100 tpy of GHG 

on a mass basis and 100,000 tpy CO2e of GHG as of July 1, 2011

or later. EPA included this limit in its regulations, and 

through this limit greatly reduced the extent of title V 

applicability. This limit was set at a level at which EPA 

determined states would have the resources to implement a title 

V program for GHG emissions. By contrast, the approved state 

programs that are subject to this rule do not incorporate the 

thresholds of the final Tailoring Rule. As a result, many or all 

of these state programs implement title V applicability for GHG 

sources more broadly –– indeed, much more broadly, to far more 

sources and to much smaller sources -- than EPA’s regulations 

do. This is problematic to the extent it may interfere with the 
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state’s ability to meet minimum requirements for title V 

programs, as discussed in the following section.

2. Minimum Requirements for Approved State Title V 

Programs

Each of the states subject to this rule submitted a title V 

program for approval. In order to be approved by EPA, the state 

program was required to meet certain minimum requirements laid 

out in the CAA and in 40 CFR part 70. One of these 

requirements, section 502(b)(4), specifies that every program 

must provide “for adequate personnel and funding to administer 

the program.” These requirements are further detailed in 40 CFR 

70.4, which requires, in part:

(6) A showing of adequate authority and 

procedures to determine within 60 days of receipt 

whether applications (including renewal applications) 

are complete, to request such other information as 

needed to process the application, and to take final 

action on complete applications within 18 months of 

the date of their submittal....

(7) A demonstration, consistent with §70.9, that 

the permit fees required by the State program are 

sufficient to cover permit program costs.

(8) A statement that adequate personnel and 

funding have been made available to develop, 

administer, and enforce the program....

As noted previously in this rule, and in the Tailoring Rule, the 

CAA also contains several other provisions making clear 

Congress’ intent that title V permits be processed in an 

expeditious manner, and these are likewise reflected in 40 CFR 

part 70. See generally CAA section 502 and 40 CFR 70.4.
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Therefore, at the time that the state submitted the title V 

program for EPA approval, the title V program was required to 

include assurances that adequate resources would be available to 

process title V permits in an expeditious manner, according to 

the requirements of the CAA and part 70. 

It is clear, however, that none of the title V programs 

affected by this action will be able to meet these minimum 

requirements for a title V program as a result of their 

applicability to GHG-emitting sources. In the proposed and 

final Tailoring Rule, EPA stated that on a nationwide basis, 

applying title V to GHG-emitting sources at the 100 tpy level 

will result in far greater numbers of sources (over 6 million)

requiring permitting than currently do (about 15,000), and the 

great majority of these additional sources would be smaller than 

the sources currently subject to title V. As a result, EPA 

added, the administrative burdens associated with permitting

these large numbers of small sources would overwhelm the

affected permitting authorities. As a result, for each state, 

EPA proposed to rescind approval of the part of the title V 

program that applies title V to GHG-emitting sources below the 

Tailoring Rule thresholds. During the comment period on this 

proposal, no authority contested this understanding of the 

facts, none stated that it could administer title V at the 100 

tpy levels, and none contested the proposal on grounds that it 
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has adequate resources. In the final Tailoring Rule, EPA 

refined, on the basis of comments, the precise extent of the 

administrative burden, but confirmed that the burden was 

overwhelming and that states lacked adequate resources. As 

noted above, in the final Tailoring Rule, EPA requested that 

states submit letters within 60 days of publication of the rule 

describing how they intended to implement title V for GHGemitting sources. In those letters, none of the states claimed 

they could, or intended to, implement the approved title V 

program at the statutory levels. From all this, it is clear 

that none of the states had included in the title V program 

submitted for approval an adequate plan or strategy to assure 

resources to administer the title V program for their GHGemitting sources at the 100 tpy level.

We note that there is nothing inherently problematic with a 

title V program submission that did not include the previouslydescribed plan to acquire additional resources. Only title V 

programs that lack appropriate constraints to limit title V 

applicability for new pollutants to match their resources must 

be narrowed to include such constraints.10

3. Basis for Reconsideration and Narrowing of Approval

 10 As stated earlier, states included in this rule are in this 

situation, or else EPA currently lacks sufficient information to 

determine that they are not in this situation. 
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Based on the previous analysis, it is clear that EPA’s 

approval of the title V programs subject to this action was

flawed. They each are structured in a manner that may impose a 

title V permitting requirement on sources of pollutants newly 

subject to regulation under the Act without limitations, and yet 

they do not have a plan for acquiring resources to adequately 

permit large new categories of sources. As explained 

previously, the combination of these title V programs’ broader 

applicability to additional stationary sources that emit 

pollutants newly subject to regulation, and the failure of the 

approved title V program to plan for adequate resources for that 

broader applicability –– and to ensure that permits could be 

issued consistent with the requirements for expeditious 

processing of permit applications –– is a flaw in these 

programs. In short, the title V program applicability 

provisions and the assurances provided in the state program 

submission are mismatched and therefore EPA needs to reconsider 

its approval of these programs. As discussed previously, EPA’s 

recently promulgated GHG rules have highlighted this flaw. 

It may be true that at the time the affected states 

submitted their state programs for approval, the precise course 

of events that have recently transpired concerning GHGs and that 

have exposed the mismatch between title V applicability and 

state assurances may have been difficult to foresee. Even so, 
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it could have been generally foreseen that the breadth of the 

affected state program applicability provisions, combined with 

the programs’ limited state assurances, was at least a potential 

mismatch that could eventually lead to title V applicability 

greatly outstripping permitting authority resources. EPA does 

not believe it is required to wait for that to occur, and then 

issue a Notice of Deficiency (NOD), to address the issue.

Rather, this is a flaw in the title V programs that provides a 

basis for EPA to reconsider its approval.

In the proposed Tailoring Rule, EPA proposed to narrow its 

approval for all approved state programs. EPA now finalizes 

this narrowing of approval for only the states which have 

indicated that their title V programs will apply to sources that 

emit or have the potential to emit at least 100 tpy of GHG as of 

January 2, 2011, or for which EPA has not been able to clearly 

establish whether or not the program will apply to such sources.

The states for which EPA is narrowing its approval of the 

approved state title V program in this action include: 

[placeholder for specific states]. For each of these states, 

EPA is finalizing an amendment to Appendix A of 40 CFR part 70 

that will state “For any permitting program located in the 

state, insofar as the permitting threshold provisions concern 

the treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 
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extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.”11

C. Authority for EPA Action

 This 

language reflects minor changes from the language proposed in 

the Tailoring Rule in order to clarify and reflect the decisions 

about permitting thresholds reached in the final Tailoring Rule. 

EPA notes that the following states have stated that they can 

permit major sources of GHG in their approved title V program 

consistent with the Tailoring Rule thresholds: [placeholder for 

specific states]. EPA also notes that the following states have 

stated they have no authority under their current approved title 

V program to permit sources due to their status as major sources 

of GHG: [placeholder for specific states]. Accordingly, it is 

not necessary at present to narrow the title V program approval 

for these two sets of states. As noted previously, EPA intends 

to work with the latter group of states, through program 

revisions, notices of deficiency and/or application of the 

federal title V program, to assure that major sources of GHGs in 

all states are subject to title V programs, but only at the 

Tailoring Rule thresholds. 

 11 EPA notes that where an approved state program includes 

multiple permitting authorities, EPA will narrow the approved 

state program if any permitting authority requires narrowing.
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EPA has determined that this flaw in the approved state 

programs warrants reconsideration of the prior program 

approvals, and narrowing of those approvals. EPA believes it 

may reconsider its prior actions under authority inherent in CAA 

section 502, with further support from CAA section 301(a), and 

the reconsideration mechanisms provided under CAA section 307(b) 

and APA section 553(e).12

In approving the state programs under CAA 502(d), EPA 

retained authority to revise that action. The courts have found 

that an administrative agency has the inherent authority to 

reconsider its decisions, unless Congress specifically 

proscribes the agency's discretion to do so. See, e.g., Gun 

South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989) 

(holding that agencies have implied authority to reconsider and 

rectify errors even though the applicable statute and 

regulations do not provide expressly for such reconsideration); 

Macktal v. Chao, 286 F.3d 822, 826-26 (5th Cir. 2002); Trujillo 

v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir. 1980) 

(“Administrative agencies have an inherent authority to 

reconsider their own decisions, since the power to decide in the 

first instance carries with it the power to reconsider”); see 

 12 The approval of title V programs is subject to the APA. Cf. 

CAA section 307(d) (omitting title V program approvals from the 

list of specific types of rulemakings under the CAA not subject 

to the APA).
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also New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008) (holding 

that an agency normally can change its position and reverse a 

prior decision but that Congress limited EPA’s ability to remove 

sources from the list of hazardous air pollutant source 

categories, once listed, by requiring EPA to follow the specific 

delisting process at CAA section 112(c)(9)).13

Section 301(a) of the CAA, in conjunction with CAA section 

502 and the case law just described, provides statutory 

authority for EPA’s reconsideration action in this rulemaking. 

Section 301(a) of the CAA authorizes EPA "to prescribe such 

regulations as are necessary to carry out [EPA's] functions" 

under the CAA. Reconsidering prior rulemakings, when necessary, 

is part of “[EPA’s] functions” under the CAA. Furthermore, the 

case law previously cited establishes that a grant of authority 

to approve state title V programs carries with it the inherent 

right to reconsider that approval, particularly since Congress 

has not prescribed any specific alternative mechanism for such 

reconsideration. Thus, CAA sections 502 and 301(a) confer 

authority upon EPA to undertake this rulemaking.

 

EPA finds further support for its authority to narrow its 

approvals in APA section 553(e), which requires EPA to give 

 13 For additional case law, see Belville Mining Co. V. United 

States, 999 F.2d 989, 997 (6th Cir. 1993); Dun & Bradstreet Corp. 

v. United States Postal Service, 946 F.2d 189, 193 (2d Cir. 

1991); Iowa Power & Light Co. v. United States, 712 F.2d 1292 

(8th Cir. 1983).
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interested persons "the right to petition for the issuance, 

amendment, or repeal of a rule," and CAA section 307(b)(1), 

which expressly contemplates that persons may file a petition 

for reconsideration under certain circumstances (at the same 

time that a rule is under judicial review). The right to 

petition to reconsider, amend, or repeal presumes that an agency 

has the discretion to grant such a petition. If EPA has the 

authority to grant a petition from another person to reconsider, 

amend or repeal a rule if justified under the CAA, then it 

follows that EPA should be considered as having authority to 

reconsider, amend or repeal a rule when it determines such an 

action is justified under the CAA, even without a petition from 

another person. 

EPA recently used its authority to reconsider prior actions 

and limit its prior approval of a State Implementation Plan 

(SIP) in connection with California conformity SIPs. See, e.g.,

68 FR 15720, 15723 (discussing prior action taken to limit 

approvals); 67 FR 69139 (taking final action to amend prior 

approvals to limit their duration); 67 FR 46618 [proposing to 

amend prior approvals to limit their duration, based on CAA 

sections 110(k) and 301(a)]. EPA had previously approved SIPs 

with emissions budgets based on a mobile source model that was 

current at the time of EPA's approval. Later, EPA updated the 

mobile source model. But, even though the model had been 
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updated, emissions budgets would continue to be based on the 

older, previously approved model in the SIPs, rather than the 

updated model. To rectify this problem, EPA conducted a 

rulemaking that revised the previous SIP approvals so that the 

approvals of the emissions budgets would expire early, when the 

new ones were submitted by states and found adequate, rather 

than when a SIP revision was approved. This helped California 

more quickly adjust its regulations to incorporate the newer 

model. 

EPA notes that it considered but decided not to use the NOD 

process, which is explicitly provided for in CAA section 502(i), 

to address the flaw presented by these program approvals. There 

are several reasons why EPA determined that it was neither 

necessary nor appropriate to use the NOD process to address this 

issue in this rule.

The CAA provides that the NOD is to be used “whenever the 

Administrator makes a determination that a permitting authority 

is not adequately administering or enforcing a program” and 

provides that states must correct the deficiency within 18 

months. CAA section 502(i). 

Here, the problem is not with the way the state is 

administering or enforcing its approved state title V program. 

States are issuing permits, and modifications, and enforcing the 

various requirements of title V as provided for under the Act. 
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The flaw is the mismatch between the breadth of the

applicability provisions and the limited state assurances of 

adequate resources, in light of the possibility that a very 

large number of new major sources could become subject to title 

V. This flaw does not relate at all to the current 

administration and enforcement of the title V program, but 

rather to the overbroad nature of the underlying structure and 

scope of the title V program. The distinction is further 

underlined by the fact that section 502(i) contemplates that 

states would need to take corrective action to address the 

notice of deficiency. However, in the case of the flaw 

addressed here, EPA believes that no further state action will 

be necessary once the approved title V program has been narrowed 
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by this action.14

EPA views the NOD as specific authority for addressing 

specific circumstances, but concludes that it is not the sole 

means of changing an approved state program, and it is not the 

appropriate means in these circumstances. EPA believes nothing 

in section 502(i) displaces its authority to reconsider prior 

program approvals and, for the reasons described previously in 

this rule and in the Tailoring Rule proposal, concludes that 

such a reconsideration and narrowing is warranted and 

appropriate.

V. Comments and Responses

Comments: Several industry commenters (4019, 4118, 4691, 

5083, 5140, 5181, 5278, 5317) and one state commenter (4019) 

generally disagreed with our proposal to narrow our approval of 

previously-approved title V programs. Specific arguments 

against the proposed approach include the following:

• The EPA has overstated its authority under CAA section 

301(a). The D.C. Circuit has observed that section 

301(a)(1) “does not provide the Administrator with carte 

blanche authority to promulgate any rules, on any matter 

 14 As noted in the Tailoring Rule, there may be good reasons for 

states to update their state laws and regulations to reflect the 

narrowing and the thresholds of the Tailoring Rule, but the 

states will still have fully approved programs, and once the 

federally-approved program is narrowed, the obligation under 

federally approved programs to apply for a permit will no longer 

exist for sources below the Tailoring Rule thresholds. 
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relating to the CAA, in any manner that the Administrator 

wishes.” Where the CAA includes express provisions –– such 

as section 110(k)(5) (the SIP call provision) –– EPA is 

required to follow those provisions. (4019, 5083, 5140, 

5181, 5278, 5317). 

• The EPA’s invocation of 5 U.S.C. 553(e) is legally 

indefensible. The EPA has mentioned no outstanding 

petition for EPA to revisit its PSD SIP approvals, so 

section 553(e) appears to be inapposite. Even where 

section 553(e) applies, it merely directs agencies to allow 

parties to seek revisions of rules; it plainly does not 

permit agencies to disregard procedural requirements ––

whether under the APA or under organic statutes such as the 

CAA –– that agencies must follow in effecting any such 

revisions. (5317)

An industry commenter (4298) supports EPA’s efforts to 

limit or conform its prior approvals through CAA sections 

301(a)(1) and 110(k)(6) with respect to applicability 

thresholds. However, the commenter believes EPA should take 

affirmative steps to ensure that states immediately either 

revise their regulations to raise existing lower thresholds or 

demonstrate that they have adequate resources and funding to 

manage their programs utilizing those existing lower thresholds.
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The same commenter states that EPA should issue a Notice of 

Deficiency (NOD), under CAA section 502(i)(1), to all states 

concurrent with the final Tailoring Rule, unless a state can 

demonstrate that it has commenced and is committed to finalizing 

any changes necessary under state law to make it consistent with 

the Tailoring Rule (4298). The commenter adds that EPA should 

not finalize any action that would trigger GHG permitting until 

each state program has been amended. Another commenter (5306) 

suggests EPA establish an expeditious deadline for states to 

submit corrective program revisions by adopting model guidelines 

to help inform state rulemaking, and EPA should complete this 

process by the end of 2010. The commenter explains that EPA can 

promptly issue a notice of deficiency and call for expeditious 

corrective action. See 42 U.S.C. 7661a(i). (5306).

Several comments state that there is no provision in title 

V, similar to error correction provisions for SIPs, for EPA to 

use to correct an error in its original approval of a title V 

program (5140, 5181, 5278).

Response: As discussed previously, EPA believes that it 

has authority under sections 502 and 301 to reconsider its 

approvals of state title V programs. Section 502(d) explicitly 

requires EPA to approve or disapprove state title V programs, 

and EPA believes under the case law cited previously, this 

authority inherently includes the authority for EPA to 
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reconsider its prior approval. EPA is citing CAA 307(b) and APA 

section 553(e) to indicate that Congress understood that EPA had 

the authority to reconsider its action in response to a 

petition. There is no reason to believe that EPA’s authority to 

reconsider its action is limited solely to situations where a 

person has filed a petition.15

While Congress “undoubtedly can limit an agency's 

discretion to reverse itself”, and “EPA may not construe a 

statute in a way that completely nullifies textually applicable 

provisions meant to limit its discretion,” New Jersey v. EPA, 

517 F.3d 574, 583 (D.C. Cir. 2008) (quotation omitted), there is 

no evidence that Congress limited EPA’s discretion to reconsider 

its decisions with respect to title V program approvals, or that 

EPA’s approach would nullify any provisions intended to limit 

its discretion. The only provision that commenters have 

identified as potentially limiting EPA’s discretion is section 

502(i), but that section is explicitly directed to the 

administration and enforcement of an approved program. Where 

there are problems with how an approved program is being 

implemented, the notice of deficiency process provides an avenue

for working with states to fix those problems. Where, however, 

EPA realizes (as here) that its approval of a program was based 

 15 We further note that it is not clear the comment challenging 

the citation of section 553(e) in the absence of a petition was 

intended to reference title V.
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on a structural flaw in the program –– that is, a mismatch 

between the scope of sources potentially covered and the 

resources to cover them -- that may cause future problems with 

administrability, there is no reason to believe that Congress 

intended to limit EPA’s ability to reconsider its decision. 

As noted previously, the distinction between current 

deficiencies in the administration and enforcement of the title 

V program, as compared to the overbroad nature of the underlying 

structure and scope of the title V program, is further 

underlined by the fact that section 502(i) contemplates that 

states would need to take corrective action to address the 

notice of deficiency. However, in the case of the flaw 

addressed here, EPA believes that no further state action will 

be necessary once the approved title V program has been narrowed 

by this action.

The conclusion that Congress did not intend to limit EPA’s 

ability to reconsider its decisions is further supported by the 

fact that (unlike the situation the DC Circuit considered in New 

Jersey v. EPA, discussed previously) Congress did not establish 

any specific substantive limits on EPA’s discretion in issuing a 

notice of deficiency. Rather, EPA is to issue a notice 

“whenever the Administrator makes a determination that a 

permitting authority is not adequately administering and 

enforcing a program...” Section 502(i)(1). Thus, EPA’s decision 
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to reconsider its approval in no way nullifies any provisions 

meant to limit its discretion. 

Finally, the fact that there is no provision similar to 

section 110(k)(6) for title V provides no basis for concluding 

that Congress intended to limit EPA’s ability to reconsider its 

approvals. Section 110(k)(6) was enacted in response to a court 

decision, Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777 

(2d Cir. 1987), where the court narrowly construed EPA’s 

authority to correct errors in SIP approvals as limited to 

typographical or similar errors. In response, Congress added 

section 110(k)(6) as part of the 1990 amendments to make clear 

that EPA has authority to correct any errors. No court has ever 

suggested that EPA lacks authority to reconsider its decisions 

to approve title V programs, and under the case law the lack of 

an explicit mechanism to correct errors in title V program 

approvals is entirely consistent with EPA’s view that such 

authority is inherent in CAA section 502, as discussed 

previously. 

EPA notes that the question of whether EPA should have 

postponed promulgation of the Vehicle Rule until each state 

title V program had been revised is not germane to this rule, 

and EPA is not, in this rule, reopening any issue as to the 

timing of its promulgation of the Vehicle Rule. Nonetheless, 

EPA had compelling reasons to issue the Vehicle Rule at the time 
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it did so. In the Vehicle Rule, EPA explained that although it 

has some discretion with respect to the timing of standards, our 

discretion was not unlimited, and that three years had already

passed since the Supreme Court had directed EPA to take 

appropriate actions under CAA section 202(a). 75 FR 25,402. 

EPA explained further that any additional delay in setting 

standards would frustrate implementation of the national program 

for regulation of motor vehicles, resulting in substantial 

prejudice to vehicle manufacturers and consumers. 75 FR 25,326. 

EPA also explained that consideration of indirect stationary 

source costs has no relevance to the issue of the appropriate 

level at which to set vehicle emission standards. Vehicle Rule 

RTC 5-456. 

As noted previously, once the federally-approved program is 

narrowed, the obligation under federally approved programs to 

apply for a permit will no longer exist for sources below the 

Tailoring Rule thresholds. Further, EPA notes that the Agency 

has no authority to amend state law, but the majority of states 

have informed EPA that they are revising their state programs to

incorporate the thresholds in the final Tailoring Rule for GHGemitting sources. Indeed, many programs report that these 

changes will be in place by January 2, 2011. Other programs 

report that their changes will be implemented by the spring of 

2011, which should be timely for state law purposes in light of 
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the fact that sources newly subject to title V generally have up 

to a year to file their application. 

EPA is continuing to work with states to implement the 

final Tailoring Rule and title V permitting for GHG sources. 

EPA intends to use program revisions, notices of deficiency 

and/or application of the federal title V program, as 

appropriate, in order to assure that GHG Sources in all states 

are subject to title V programs (and that those programs are not 

overwhelmed by permitting sources below the Tailoring Rule 

thresholds). EPA reiterates that once the federally-approved 

program is narrowed (in this action), the obligation under 

federally approved programs to apply for a permit will no longer 

exist for sources below the Tailoring Rule thresholds. EPA 

reiterates further that this approach is preferable to the NOD 

process for states subject to this action and that it is not 

necessary to issue notices of deficiency as part of this 

rulemaking.

VI. Effective Date

This rule is being issued under CAA § 307(d)(1)(V). CAA 

section 307(d) specifies that rules issued under its provisions 

are not subject to APA section 553. Thus, the 30-day delay in 

effective date from the date of signature required under the APA 

does not apply. In addition, APA section 553(d) provides 

exceptions to this requirement for good cause and for any action 
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that grants or recognizes an exemption or relieves a 

restriction. The effect of this rule is to relieve many small 

sources (and permitting authorities) from permitting obligations 

under title V and to address the potential for permitting 

authorities to be overwhelmed by processing permits not required 

under 40 CFR part 70. Therefore EPA finds that there is good 

cause for an immediate effective date, and that an immediate 

effective date is consistent with the purposes underlying APA 

section 553(d). In addition, since this is not a major rule 

under the Congressional Review Act (CRA), the 60-day delay in 

effective date required for major rules under the CRA does not 

apply. This rule is thus effective upon publication.

VII. 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 will raise 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. Instead, this will significantly reduce costs incurred 
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by sources and permitting authorities relative to the costs that 

would be incurred if EPA did not revise this rule. In the final 

Tailoring Rule, EPA stated that based on its GHG threshold data 

analysis, it estimated that over 6 million new facilities

nationally would be required to obtain operating permits based 

on applying an emissions threshold for major source status of 

100 tpy of GHG emissions on a mass basis. This was compared 

with the approximately 15,000 title V permits that have been 

issued to date. Thus, without the final Tailoring Rule, the 

administrative burden for permitting GHG emissions would 

increase 400-fold, an unmanageable increase. The current action 

takes further steps to implement the burden-reduction 

implemented by the final Tailoring Rule by raising the GHG 

thresholds in the title V programs of the identified state and 

local agencies from 100 tpy to the higher thresholds required 

under the final Tailoring Rule (100,000 tpy CO2e under title V 

during step 2 of the final Tailoring Rule implementation). 

However, OMB has previously approved the information collection 

requirements contained in the existing regulations under 40 CFR 

part 70 under the provisions of the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. and has assigned OMB control number 2060-

0336. The OMB control numbers for EPA's regulations in 40 CFR 

are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 
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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 rule on small 

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

defined by the Small Business Administration’s (SBA) regulations 

at 13 CFR 121.201; (2) a small governmental jurisdiction that is 

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

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

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

independently owned and operated and is not dominant in its 

field.

After considering the economic impacts of this final rule 

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

significant economic impact on a substantial number of small 

entities. In making such determinations, the impact of concern 

is any significant adverse economic impact on small entities (5 

U.S.C. 603 and 604). This rule will relieve federal regulatory 

burdens for affected small entities, including small businesses 
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that are subject to title V permitting in the affected states by 

raising the GHG applicability thresholds in those states to the 

levels required under the final Tailoring Rule, which in turn, 

will result that fewer sources being subject to title V 

permitting in those states. Thus, the program changes provided 

by this rule will not result in a significant economic impact on 

a substantial number of small entities.

D. Unfunded Mandates Reform Act 

This action contains no Federal mandates under the provisions 

of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 

U.S.C. 1531-1538 for State, local, or tribal governments or the 

private sector. The action is merely an administrative action 

designed to ensure consistency with the requirements of the final 

Tailoring Rule. This action does not require any state or local 

permitting agency or private entity to take on any new regulatory 

burdens; any burden resulting from changing state or local GHG 

thresholds was already accounted for in the final Tailoring Rule, 

which already imposes the higher GHG thresholds addressed by this 

action. Thus, this action is not subject to the requirements of 

sections 202 or 205 of the 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 

rule is expected to result in cost savings and administrative 
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burden reduction for affected permitting agencies and sources in 

the affect states, including governments.

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 seeks to reduce the number of sources 

subject to title V permitting in the affected states by raising 

the GHG thresholds in those states to the levels required under 

the final Tailoring Rule, resulting in a significant reduction 

in burdens for affected state and local agencies. Thus, 

Executive Order 13132 does not apply to this action. In the 

spirit of Executive Order 13132, and consistent with EPA policy 

to promote communications between EPA and State and local 

governments, EPA specifically solicited comment on the proposed 

action from State and local officials.

F. Executive Order 13175 – Consultation and Coordination with 

Indian Tribal Governments

Subject to Executive Order 13175 (65 FR 67249, November 9, 

2000) EPA may not issue a regulation that has tribal 

implications, that imposes substantial direct compliance costs, 

and that is not required by statute, unless the federal 
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government provides the funds necessary to pay the direct 

compliance costs incurred by tribal governments, or EPA consults 

with tribal officials early in the process of developing the 

proposed regulation and develops a tribal summary impact 

statement.

EPA has concluded that this action may have tribal 

implications. However, it will neither impose substantial 

direct compliance costs on tribal government, nor preempt tribal 

law. There are no tribal authorities with an EPA-approved part 

70 title V permitting program to date;16

EPA consulted with tribal officials early in the process of 

developing the final Tailoring Rule, which the current rule 

helps to implement, to allow them to have meaningful and timely 

input into its development. EPA specifically solicited comments 

from tribal officials on the proposal for this approach to 

narrowing title V program approvals, which was part of the GHG 

Tailoring Rule proposal (74 FR 55292, October 27, 2009). EPA 

consulted with tribal officials early in the regulatory 

development process for the GHG Tailoring Rule, including by 

publishing an Advanced Notice of Proposed Rulemaking (73 FR 

44354, July 30, 2009), where we received several comments from 

however, this may change 

in the future.

 16 One tribe is operating a title V permit program pursuant to a 

delegation under part 71.
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tribal officials which were considered in the proposed and final 

rules. 

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 does not establish an environmental 

standard intended to mitigate health or safety risks.

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. Further, we have 

concluded that this rule is not likely to have any adverse 

energy effects because it does not create any new requirements 

for sources in the energy supply, distribution, or use sectors.

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 
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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 action does not involve technical standards.

Therefore, EPA did not consider the use of any voluntary 

consensus standards.

J. Executive Order 12898 -- Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994))

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 

appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in 

the United States. 
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EPA has concluded that it is not practicable to determine 

whether there would be disproportionately high and adverse human 

health or environmental effects on minority and/or low income 

populations from this rule. This rule is necessary in order to 

allow for the continued implementation of permitting 

requirements established in the Clean Air Act. Specifically, 

without this rule, the affected states’ CAA title V permitting 

programs would become overwhelmed and unmanageable by the 

untenable number of GHG sources that would become newly subject 

to them. This would result in severe impairment of the 

functioning of these programs with potentially adverse human 

health and environmental effects nationwide. Under this rule 

and the findings under the final Tailoring Rule, EPA is ensuring 

that the affected states’ CAA permitting programs continue to 

operate by limiting their applicability to the maximum number of 

sources the programs can possibly handle. This approach is 

consistent with congressional intent as it phases in 

applicability, starting with the largest sources initially, and 

then other sources over time, so as not to overwhelm state 

permitting programs. By doing so, this rule allows for the 

maximum degree of environmental protection possible while 

providing regulatory relief for the unmanageable burden that 

would otherwise exist. Therefore, we believe it is not 

practicable to identify and address disproportionately high and 
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adverse human health or environmental effects on minority 

populations and low income populations in the United States 

under this final rule, though we do believe that this rule will 

ensure that states can continue to issue title V permits to 

significant sources of air pollution.

K. Congressional Review Act

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

added by the Small Business Regulatory Enforcement Fairness Act 

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

the agency promulgating the rule must submit a rule report, 

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

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

submit a report containing this rule and other required 

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

Representatives, and the Comptroller General of the United 

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

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

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. 804(2). This rule will be effective 

[insert date of publication in the Federal Register].

L. Judicial Review

Under section 307(b)(1) of the Act, petitions for judicial 

review of this action must be filed in the United States Court 

of Appeals for the District of Columbia Circuit by [insert date 
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of publication in the Federal Register). Any such judicial 

review is limited to only those objections that are raised with 

reasonable specificity in timely comments. Filing a petition 

for reconsideration by the Administrator of this final rule does 

not affect the finality of this rule for the purposes of 

judicial review nor does it extend the time within which a 

petition for judicial review may be filed, and shall not 

postpone the effectiveness of such rule or action. Under 

section 307(b)(2) of the Act, the requirements of this final 

action may not be challenged later in civil or criminal 

proceedings brought by us to enforce these requirements.

Pursuant to section 307(d)(1)(V) of the Act, the Administrator 

determines that this action is subject to the provisions of

section 307(d). Section 307(d)(1)(V) provides that the 

provisions of section 307(d) apply to ”such other actions as the 

Administrator may determine.” This action finalizes some, but 

not all, elements of a previous proposed action -— the 

Prevention of Significant Deterioration and Title V Greenhouse

Gas Tailoring Rule Proposed Rule (74 FR 55292, October 27, 

2009).

Section 307(b)(1) of the CAA indicates which Federal Courts 

of Appeal have venue for petitions of review of final actions by 

EPA. This section provides, in part, that petitions for review 

must be filed in the Court of Appeals for the District of 
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Columbia Circuit: (i) when the agency action consists of 

“nationally applicable regulations promulgated, or final actions 

taken, by the Administrator,” or (ii) when such action is 

locally or regionally applicable, if “such action is based on a 

determination of nationwide scope or effect and if in taking 

such action the Administrator finds and publishes that such 

action is based on such a determination.”

This rule narrowing approvals of title V programs is 

“nationally applicable” within the meaning of section 307(b)(1). 

This rule narrows the approval of almost all approved title V 

programs across the country. At the core of this rulemaking is 

EPA’s interpretation of its authority to reconsider its prior 

approvals under the Clean Air Act, and its application of that 

interpretation to areas across the country.

For the same reasons, the Administrator also is determining 

that this action is of nationwide scope and effect for the 

purposes of section 307(b)(1). This is particularly appropriate 

because, in the report on the 1977 Amendments that revised 

section 307(b)(1) of the CAA, Congress noted that the 

Administrator’s determination that an action is of “nationwide 

scope or effect” would be appropriate for any action that has a 

scope or effect beyond a single judicial circuit. H.R. Rep. No. 

95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. 

Here, the scope and effect of this rulemaking extends to 
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numerous judicial circuits since title V programs for almost all 

areas across the country are affected by this action. In these 

circumstances, section 307(b)(1) and its legislative history 

calls for the Administrator to find the rule to be of 

“nationwide scope or effect” and for venue to be in the D.C. 

Circuit.

Thus, any petitions for review of the narrowing of title V 

program approvals must be filed in the Court of Appeals for the 

District of Columbia Circuit within 60 days from the date final 

action is published in the Federal Register.

Statutory Authority

The statutory authority for this action is provided by 

section 301 and 502 of the CAA as amended (42 U.S.C. 7601 and 

7661a). This action is also subject to section 307(d) of the CAA 

(42 U.S.C. 7407(d)). 
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Page 59 of 83 - Action to Ensure Authority to Implement Title 

V Permitting Programs under the Greenhouse Gas Tailoring 

Rule

List of Subjects in 40 CFR Part 70

Environmental protection, Administrative practice and 

procedure, Air pollution control, Carbon dioxide, Carbon dioxide 

equivalents, Greenhouse gases, Hydrofluorocarbons,

Intergovernmental relations, Methane, Nitrous oxide, 

Perfluorocarbons, Reporting and recordkeeping requirements, 

Sulfur hexafluoride. 

________________________

Dated:

_________________________

Lisa P. Jackson,

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

the Code of Federal Regulations is amended as set forth in the 

following.

PART 70—[AMENDED]

1. The authority citation for part 70 continues to read as 

follows:

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

2. Appendix A to Part 70 is amended as follows:

[This is the complete proposed list -- Retained for future 

reference until precise list is determined]

a. By revising the introduction text to the appendix; and

b. By adding paragraph (d) under Alabama;

c. By adding paragraph (c) under Alaska;

d. By adding paragraph (e) under Arizona;

e. By adding paragraph (d) under Arkansas;

f. By adding paragraph (jj) under California;

g. By adding paragraph (c) under Colorado;

h. By adding paragraph (c) under Connecticut;

i. By adding paragraph (d) under Delaware;

j. By adding paragraph (d) under District of Columbia;

k. By adding paragraph (c) under Florida;

l. By adding paragraph (c) under Georgia;

m. By adding paragraph (d) under Hawaii;

n. By adding paragraph (c) under Idaho;
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o. By adding paragraph (c)under Illinois;

p. By adding paragraph (d) under Indiana;

q. By adding paragraph (m) under Iowa;

r. By adding paragraph (e) under Kansas;

s. By adding paragraph (c) under Kentucky;

t. By adding paragraph (c) under Louisiana;

u. By adding paragraph (c) under Maine;

v. By adding paragraph (d) under Maryland;

w. By adding paragraph (c) under Massachusetts;

x. By adding paragraph (c) under Michigan;

y. By adding paragraph (d) under Minnesota;

z. By adding paragraph (c) under Mississippi;

aa. By adding paragraph (x) under Missouri;

bb. By adding paragraph (c) under Montana;

cc. By adding paragraph (k) under Nebraska, City of Omaha;

Lincoln-Lancaster County Health Department;

dd. By adding paragraph (d) under Nevada;

ee. By adding paragraph (c) under New Hampshire;

ff. By adding paragraph (e) under New Jersey;

gg. By adding paragraph (g) under New Mexico;

hh. By adding paragraph (e) under New York;

ii. By adding paragraph (e) under North Carolina;

jj. By adding paragraph (d) under North Dakota;

kk. By adding paragraph (d) under Ohio;
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ll. By adding paragraph (c) under Oklahoma;

mm. By adding paragraph (c) under Oregon;

nn. By adding paragraph (c) under Pennsylvania;

oo. By adding paragraph (c) under Puerto Rico;

pp. By adding paragraph (c) under Rhode Island;

qq. By adding paragraph (c) under South Carolina;

rr. By adding paragraph (c) under South Dakota;

ss. By adding paragraph (f) under Tennessee;

tt. By adding paragraph (d) under Texas;

uu. By adding paragraph (c) under Utah;

vv. By adding paragraph (c) under Vermont;

ww. By adding paragraph (c) under the Virgin Islands;

xx. By adding paragraph (c) under Virginia;

yy. By adding paragraph (j) under Washington;

zz. By adding paragraph (f) under West Virginia;

aaa. By adding paragraph (c) under Wisconsin, and

bbb. By adding paragraph (c) under Wyoming.

Appendix A to Part 70—Approval of State and Local Operating

Permits

This appendix provides information on the approval status

of State and Local operating Permit Programs. An approved State

part 70 program applies to all part 70 sources, as defined in

that approved program, within such State, except for any source
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of air pollution over which a federally recognized Indian Tribe

has jurisdiction. 

Alabama 

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Alaska

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Arizona

* * * * *

(e) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 
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treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Arkansas

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

California

* * * * *

(jj) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.
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Colorado

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Connecticut

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Delaware

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 
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extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

District of Columbia

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Florida

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Georgia

* * * * *
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(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Hawaii

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Idaho

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the

extent they require permits for such sources where the source 
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emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Illinois

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Indiana

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Iowa

* * * * *

(m) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 
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treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Kansas

* * * * *

(e) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Kentucky

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Louisiana
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* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Maine

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Maryland

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 
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emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Massachusetts

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Michigan

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Minnesota

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 
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treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Mississippi

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Missouri

* * * * *

(x) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.
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Montana

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Nebraska; City of Omaha; Lincoln-Lancaster County Health

Department

* * * * *

(k) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Nevada

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for
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purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

New Hampshire

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

New Jersey

* * * * *

(e) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

New Mexico

* * * * *
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(g) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

New York

* * * * *

(e) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

North Carolina

* * * * *

(e) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 
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emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

North Dakota

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Ohio

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Oklahoma

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 
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treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Oregon

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Pennsylvania

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Puerto Rico
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* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Rhode Island

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

South Carolina

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 
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emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

South Dakota

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Tennessee

* * * * *

(f) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Texas

* * * * *

(d) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 
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treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Utah

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Vermont

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Virgin Islands
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* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Virginia

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Washington

* * * * *

(j) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 
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emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

West Virginia

* * * * *

(f) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Wisconsin

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 

treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

Wyoming

* * * * *

(c) For any permitting program located in the state, 

insofar as the permitting threshold provisions concern the 
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treatment of sources of GHG emissions as major sources for 

purposes of title V, EPA approves such provisions only to the 

extent they require permits for such sources where the source 

emits or has the potential to emit at least 100,000 tpy CO2e, as 

well as 100 tpy on a mass basis, as of July 1, 2011.

* * * * *