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Page 1 of 83 **6560 -**  **50 -**  **P**
**ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70**  **[EPA -**  **HQ -**  **OAR -**  **2009 -**  **0517; FRL -**  **xxxx -**  **x] RIN 2060**  **- A**  **Q63 Action to Ensure Authority to Implement**  **T itle 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 federally

enforceable 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 federa lly

- 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*** E.O. 12866 Review

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Page 2 of 83 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 act ion under Docket ID No. EPA

- HQ

- OAR

- 2009

- 0517. All documents in the docket are listed on the www.regulations.gov W eb 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 av ailable 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 Constit ution 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 EP A 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*** E.O. 12866 Review

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Page 3 of 83 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 reg ional 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 Caro lina, 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.*** E.O. 12866 Review

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Page 4 of 83 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 a ction a pply to m e ? Entities affected by this action include s tates, 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 threshold s set forth in the Tailoring Rule. The*** E.O. 12866 Review

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Page 5 of 83 majority of entities potentially affected by this action are expected to be in the following groups: **Industry Group NAICS**  **a**
Agriculture, fishing, a nd 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*** E.O. 12866 Review

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Page 6 of 83 Machinery Manuf acturing
................................................ 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 e xist for private households, construction, and leasing/ sales industries

--------------------------------------------------------------- a North American Industry Classification System.*** E.O. 12866 Review

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Page 7 of 83 B. How is this P reamble O rganized ? The information presented in this preamble is organized as follows: I. General Information A. Does this a ction a pply to m e? B. How is this p reamble o rganized? 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 Ord er 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 Significan tly 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 Low

Income 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*** E.O. 12866 Review

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Page 8 of 83 Deterioration and Title V Greenhouse Gas T ailoring 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 P revention of Significant Deterioration ( PSD ) and title V purposes 1

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 O nly the title V provisions are relevant for this action.*** E.O. 12866 Review

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Page 9 of 83 emissions only if , as of July 1, 2011, it emits GHGs at or above 100,000 tpy measured on a carbon dioxide equivalent (CO 2 e) basis, and it also emits GHGs at levels at or above the statutory 100 tpy mass

- bas ed threshold generally applicable to all pollutants subject to regulation . The Tailoring Rule thresholds alleviate the overwhelming administrative burdens and costs that using the statutory threshold s alone for the permitting threshold s would place on tit le 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 thre shold s for purposes of the permitting threshold s , 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 CO 2 e. 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 CO 2 e. When EPA finalized the Tailoring Rule, EPA did not finalize tha t part of the proposal. Instead, EPA waited to collect more information from*** E.O. 12866 Review

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Page 10 of 83 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 propo sal 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 l imit 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 cl ear 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 t o the extent the programs require title V permits for sources of GHG emissions be low the Tailoring Rule thresholds. The other portions of the se title V programs, including portions requiring permits for GHG

- emitting sources with emissions at or above the Tailoring Rule*** E.O. 12866 Review

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Page 11 of 83 thresholds, remain approved. States affected by this rule will

no t 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 Tailori ng Rule threshold of 100,000 tpy CO 2 e (and 100 tpy mass basis) , which takes effect on July 1, 2011
. This action ensures that the federal ly

- approved programs applicable in the affected states do not require title V permitting for sources with GHG emissions below the f inal Tailoring Rule thresholds as of January 2, 2011. **III. Proposed Rule** We assume familiarity here with the statutory and regulatory backgrou nd 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 annu ally certify their compliance status with respect to their permit requirements.*** E.O. 12866 Review

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Page 12 of 83 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 emit s , or ha s the potential to emit, at least 100 tpy of an air pollutant subject to regulati on 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 fo ur 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 (De cember 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 Re gulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program" (commonly referred to as the "Johnson Memo"), December 18, 2008.*** E.O. 12866 Review

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Page 13 of 83 simply the “Vehicle Rule”) , 5 and the "Tailoring Rule." 6

5 "Light

- Duty Vehicle Greenhouse Gas Emission Standards and Corporate Aver age 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 e xhaustive 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 comb ined 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 t itle 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 reit erated 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).*** E.O. 12866 Review

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Page 14 of 83 the Act can trigger major source status for purposes of t itle V, and further concluded that the earliest date GHG would be subject to regulation for purposes of title V would be J anuary 2, 2011. The Tailoring Rule established a series of steps by which PSD and t itle V permit requirements for GHG could be phased in, starting with the largest sources of GHG emissions.
75 FR 31,514. In the p roposed Tailoring Rule, EPA proposed a major stationary source threshold for purposes of title V of 25,000 tpy for GHG on a CO 2 e 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
statutor y 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 im plement 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 Ru le 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*** E.O. 12866 Review

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Page 15 of 83 threshold of the Tailoring Rule
. EPA rel ied for its authority for the proposed limitations of approval o n 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 f inal 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 ha d proposed. In response to comments from States, in place of pr oviding 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” unde r CAA sections 501(2)(B) and*** E.O. 12866 Review

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Page 16 of 83 302(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 GHG s within a definition of the term “subject to regulation” that was also added t o 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 obvia te the need for EPA to limit its approval of the state’s title V program. Thus, in the f inal 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 impl ement 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 w e 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 permitt ed consistent with the final Tailoring Rule, and specifically for which states it would need to limit its approv al 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*** E.O. 12866 Review

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Page 17 of 83 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 t hey 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 type s 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 f inal Tailoring*** E.O. 12866 Review

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Page 18 of 83 Rule, EPA establi shed levels of GHG emissions for purposes of determining applicability of title V. However, most EPA

approved state title V programs currently provide that sources of GHG s will become subject to title V requirements even where the sources emit GHGs below the final Tailoring Rule thresholds
. U nder 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 be low 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 sour ces that emit below the final Tailoring Rule thresholds. In the p roposed 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 p ermitting 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*** E.O. 12866 Review

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Page 19 of 83 this narr owing of approval for the states with title V programs that will apply to GHG emissions at below

- Tailoring Rule levels as of Jan uary 2, 2011, and for states that EPA cannot clearly determine do not fall in this category. The states for whom EPA is narrowi ng 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 thresho lds 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 ’ sha ll have its conventional meaning.” This notice follows the same approach to the use of the term “state.”*** E.O. 12866 Review

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Page 20 of 83 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 “ade quate personnel and funding to administer the program.” CAA section 502(b)(4). Th ese requirement s need to be understood in context of Congress’ clear concern for “the need for expeditious action by the permitting authority on permit applications and rela ted 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, f or purposes of GHG emissions, only title V permitting for sources emitting GHGs at or above final Tailoring Rule threshold s. EPA believes regulating at these thresholds will require resources at a level consistent with the descriptions of adequate resourc es 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.*** E.O. 12866 Review

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Page 21 of 83 EPA is narrowing its approval of the title V programs for all states that ha ve 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 n ot 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 thei r 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 tho se changes, this approach provides an efficient means of ensuring that at no time is there a requirement under a federal ly

- 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*** E.O. 12866 Review

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Page 22 of 83 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 app licable 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 ext ent” 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*** E.O. 12866 Review

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Page 23 of 83 state’s program does not require permits for these sources at all, there are no consequences to sources or the permitting

a uthority 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 o r 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 refraini ng 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 A pplicability

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 h arm to the permitting authority or sources as a result of EPA ’ s decision to narrow its approval consistent with the final Tailoring Rule thresholds.*** E.O. 12866 Review

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Page 24 of 83 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 st ates 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 sour ces 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 wh at is happening at present, now that GHG will become subject to regulation under CAA section 202(a) and will be come 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*** E.O. 12866 Review

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Page 25 of 83 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 pollut ants. 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 GHG s 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 GHG s 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 s tates subject to this rule can interpret their programs more narrowly, to apply to only GHG

emitting sources at or above the final Tailoring Rule thresholds. In contrast, as noted elsewhere, several other states are able to interpret their title V program s more narrowly and, as a result, are not subject to this action.*** E.O. 12866 Review

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Page 26 of 83 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 applica bility 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 . T hus, in the final Tailoring Rule, EPA implemented limits on when GHG s become “subject to regulation” for purposes of title V, such that emissions of GHG s will not trigger major source status, and thus will not trigger title V permit requirements, unless th e 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 le vel 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 interfe re with the*** E.O. 12866 Review

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Page 27 of 83 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 appro val. 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 re newal 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 t he 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.*** E.O. 12866 Review

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Page 28 of 83 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 th e 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 t he 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) requir ing 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 affe cted permitting authorities. As a result, f or 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*** E.O. 12866 Review

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Page 29 of 83 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, i n the final Tailoring Rule, EPA requested that states submit letters within 60 days of pu blication of the rule describing how they intended to implement title V for GHG

emitting 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 i s 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 GHG

emitting 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 previously

described plan to acquire additional resources. Only title V programs that lack appropriate constraints to limit title V applicability for new pollutants to matc h 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 suffic ient information to determine that they are not in this situation.*** E.O. 12866 Review

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Page 30 of 83 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 emi t 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 processin g 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 the se 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 conce rning GHGs and that have exposed the mismatch between title V applicability and
state assurances may have been difficult to foresee
. Even so,*** E.O. 12866 Review

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Page 31 of 83 it could have been generally foreseen that the breadth of the affected state program applicability provisions, c ombined with the programs’ limited state assurances, was at least a potential mismatch that c ould 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 p roposed Tailoring Rule, EPA proposed to narrow its approval for all approve d 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 E PA 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*** E.O. 12866 Review

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Page 32 of 83 extent they require permits for such sources where the source emits or has the potential t o emit at least 100,000 tpy CO 2 e, 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 rea ched 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 nar row 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 maj or sources of GHG s in all states a re 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.*** E.O. 12866 Review

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Page 33 of 83 EPA has determined that this flaw in the approved state programs warrants reconsideration of the prior program
appro vals, 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 mechanism s provided under CAA section 307(b) and AP A 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
pro scribes 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 (5 th 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 re consider”) ; 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).*** E.O. 12866 Review

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Page 34 of 83 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 haz ardous 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 par t 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 section s 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. Unit ed States , 999 F.2d 989, 997 (6 th 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 (8 th Cir. 1983).*** E.O. 12866 Review

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Page 35 of 83 interested persons "the right to petition for the issuance, amendment, or repeal of a rule," and CAA section 307(b)(1), which expressly co ntemplates 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 th e 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, ame nd 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 approv als 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*** E.O. 12866 Review

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Page 36 of 83 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 ap provals 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 incorpora te 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.*** E.O. 12866 Review

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Page 37 of 83 The flaw is the mismatch between the breadth of the applicability provisions and the limited state assurances of adequate resources , in light of the poss ibility 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 an d 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*** E.O. 12866 Review

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Page 38 of 83 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 5 02(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
aga inst 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 federal ly

- 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.*** E.O. 12866 Review

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Page 39 of 83 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) suppor ts 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 revi se 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.*** E.O. 12866 Review

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Page 40 of 83 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 R ule (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 pr ogram 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. S ee 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 : A s 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 include s the authority for EPA to*** E.O. 12866 Review

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Page 41 of 83 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”, a nd “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 disc retion 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 s ection 553(e) in the absence of a petition was intended to reference title V.*** E.O. 12866 Review

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Page 42 of 83 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

a dministrability , 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 administ ration and enforcement of the title V program, as compared to the overbroad nature of the underlying
structure a nd scope of the title V program, is further underlined by the fact that section 502(i) contemplates that states would need to take corrective ac tion 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*** E.O. 12866 Review

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Page 43 of 83 to reconsider its approval in no way nullifie s 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 unde r 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*** E.O. 12866 Review

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Page 44 of 83 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 n ational p rogram for regulatio n 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 thr esholds. 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 GHG

emitting 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 s pring of 2011, which should be timely for state law purposes in light of*** E.O. 12866 Review

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Page 45 of 83 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 N O D 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 no t apply. In addition, APA section 553(d) provides exceptions to this requirement for good cause and for any action*** E.O. 12866 Review

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Page 46 of 83 that grants or recognizes an exemption or relieves a restriction. The effect of this rule is to relieve many small sources (and permitting a uthorities) 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 effectiv e 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 u nder 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*** E.O. 12866 Review

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Page 47 of 83 by sources and permitting authorities relative to the costs that would be incurred if EPA did not revise this rule. In the f inal Tailoring Rule, EPA stated that based on its GHG threshold data analysi s, it estimated that over 6 million new facilities nationally would be required to obtain operating permits based on applying a n 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 f inal Tailoring Rule, the administrative burden for permitting GHG emissions would increase 400

- fold, an unmanageable increase. The current action takes further steps t o implement the burden

- reduction implemented by the f inal 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 Paperwor k 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*** E.O. 12866 Review

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Page 48 of 83 The Regulatory Flexibility Act (RFA) generally r equires 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 significa nt 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 thi s 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 relie ve federal regulatory burdens for affected small entities, including small businesses*** E.O. 12866 Review

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Page 49 of 83 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 f inal 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 ch anging state or local GHG thresholds was already accounted for in the final T ailoring R ule, which already impose s 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*** E.O. 12866 Review

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Page 50 of 83 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 source s subject to title V permitting in the affected states by raising the GHG thresholds in those states to the levels required under the f inal Tailoring Rule, resulting in a significant reduction in burdens for affected state and local agencies. Thus,
Execut ive 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 Sta te 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 sub stantial direct compliance costs, and that is not required by statute, unless the federal*** E.O. 12866 Review

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Page 51 of 83 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 tr ibal 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 tr ibal officials on the proposal for this approach to narrowing title V program approvals, which was part of the GHG
T ailoring R ule proposal (74 FR 55292, October 27, 2009). EPA consulted with tribal officials early in the regulatory development process for the GHG T ailoring R ule, 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.*** E.O. 12866 Review

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Page 52 of 83 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 eff ect 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*** E.O. 12866 Review

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Page 53 of 83 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 busine ss 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.*** E.O. 12866 Review

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Page 54 of 83 EPA ha s 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 t hat 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 f inal 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 in tent 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*** E.O. 12866 Review

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Page 55 of 83 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 Congression al 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 Repres e ntatives, and the Comptroller General of th e United States prior to publication of the rule in the Federal Register
. A m ajor 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 effe ctive [ insert date of publication in the F ederal R egister ]
. 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*** E.O. 12866 Review

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Page 56 of 83 of publication in the F ederal R egister ). 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 rul e 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 subje ct 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).
Sec tion 307(b) (1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final action s by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of*** E.O. 12866 Review

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Page 57 of 83 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 ru lemaking 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 Administrat or 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*** E.O. 12866 Review

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Page 58 of 83 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 Columb ia 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. 7 6 01 and 76 6 1 a ). This action is also subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).*** E.O. 12866 Review

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Page 59 of 83 **Page 59 of 83 -**  **Action to Ensure Authority to Implement T**  **itle 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 r ecordkeeping requirements, Sulfur hexafluoride.

________________________ Dated:

_________________________ Lisa P. Jackson, Administrator
.*** E.O. 12866 Review

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Page 60 of 83 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 a s 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) unde r Idaho ;*** E.O. 12866 Review

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Page 61 of 83 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 ;*** E.O. 12866 Review

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Page 62 of 83 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 addin g 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*** E.O. 12866 Review

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Page 63 of 83 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 suc h sources where the source emits or has the potential to emit at least 100,000 tpy CO 2 e, 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 provi sions 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 CO 2 e, 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*** E.O. 12866 Review

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Page 64 of 83 treatment of sources of GHG emissions as major sources for
purp oses 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 CO 2 e, 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 pe rmits for such sources where the source emits or has the potential to emit at least 100,000 tpy CO 2 e, 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 permitti ng 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 CO 2 e, as well as 100 tpy on a mass basis, as of July 1, 2011.*** E.O. 12866 Review

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Page 65 of 83 **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 ma jor 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 CO 2 e, 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 CO 2 e, as well as 100 tpy on a mass basis, as of July 1, 2011. **Delaware**
* * * * * (d) For any permitting program located in the state, ins ofar 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*** E.O. 12866 Review

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Page 66 of 83 extent they require permits for such sources where the source emits or has the potential to emit at least 100,000 tpy CO 2 e , 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 t o emit at least 100,000 tpy CO 2 e, 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 emission s 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **Georgia**
* * * * **** E.O. 12866 Review

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Page 67 of 83 (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 t o emit at least 100,000 tpy CO 2 e, 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 CO 2 e , 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*** E.O. 12866 Review

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Page 68 of 83 emits or has the potential to emit at least 100,000 tpy CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **Illinois**
* * * * * (c) For any permitting program located in the state, ins ofar 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 CO 2 e , 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 G HG 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 CO 2 e , 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*** E.O. 12866 Review

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Page 69 of 83 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 CO 2 e , 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, EP A 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **Kentucky**
* * * * * (c) For any permit ting 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 sour ces where the source emits or has the potential to emit at least 100,000 tpy CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. Louisiana*** E.O. 12866 Review

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Page 70 of 83 * * * * * (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 t o emit at least 100,000 tpy CO 2 e , 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 CO 2 e , 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 t he extent they require permits for such sources where the source*** E.O. 12866 Review

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Page 71 of 83 emits or has the potential to emit at least 100,000 tpy CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **Massachusetts**
* * * * * (c) For any permitting program located in the sta te, 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 h as the potential to emit at least 100,000 tpy CO 2 e , 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 sour ces 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 CO 2 e , 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*** E.O. 12866 Review

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Page 72 of 83 treatment of sources of GHG emissions as major sources for purposes of title V, EPA approves suc h 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **Mississippi**
* * * * * (c) For any permitting progra m 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 t he source emits or has the potential to emit at least 100,000 tpy CO 2 e , 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 t he 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011.*** E.O. 12866 Review

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Page 73 of 83 **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 t o emit at least 100,000 tpy CO 2 e , 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 100,0 00 tpy CO 2 e , 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*** E.O. 12866 Review

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Page 74 of 83 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 CO 2 e , 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 CO 2 e , 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 t o emit at least 100,000 tpy CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **New Mexico**
* * * * **** E.O. 12866 Review

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Page 75 of 83 (g) For any permitting program located in the state, insofar as the permitting threshold provisions concern the treatment of sources of GHG emiss ions 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 CO 2 e , as well as 100 tpy on a mass basis, as of Ju ly 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **North Carolina**
* * * * * (e) For any permitting program located in t he 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*** E.O. 12866 Review

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Page 76 of 83 emit s or has the potential to emit at least 100,000 tpy CO 2 e , 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 t o emit at least 100,000 tpy CO 2 e , 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 a s 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 CO 2 e , 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*** E.O. 12866 Review

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Page 77 of 83 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 CO 2 e , 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, EP A 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **Pennsylvania**
* * * * * (c) For any pe rmitting 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. Puerto Rico*** E.O. 12866 Review

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Page 78 of 83 * * * * * (c) For any permitting program located in the state, insofar as the permitting threshold pr ovisions 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 Caro lina** 
* * * * * (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 t hey require permits for such sources where the source*** E.O. 12866 Review

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Page 79 of 83 emits or has the potential to emit at least 100,000 tpy CO 2 e , 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 poten tial to emit at least 100,000 tpy CO 2 e , 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 t o emit at least 100,000 tpy CO 2 e , 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*** E.O. 12866 Review

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Page 80 of 83 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 CO 2 e , 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

e xtent they require permits for such sources where the source emits or has the potential to emit at least 100,000 tpy CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011.
**Vermont**
* * * * * (c) For any permitting program located in the state, insofa r 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 pot ential to emit at least 100,000 tpy CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011. **Virgin Islands***** E.O. 12866 Review

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Page 81 of 83 * * * * * (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 CO 2 e , as well as 100 tpy on a mass bas is, 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 t o emit at least 100,000 tpy CO 2 e , 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 emiss ions 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*** E.O. 12866 Review

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Page 82 of 83 emits or has the potential to emit at least 100,000 tpy CO 2 e , as well as 100 tpy on a mass basis, as of Ju ly 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 CO 2 e , 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 emi ts or has the potential to emit at least 100,000 tpy CO 2 e , 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*** E.O. 12866 Review

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Page 83 of 83 treatment o f 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 CO 2 e , as well as 100 tpy on a mass basis, as of July 1, 2011.
* * * * *