Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call, 53892-53907 [2010-21701]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 75, Number 170 (Thursday, September 2, 2010)]
[Proposed Rules]
[Pages 53892-53907]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21701]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0107; FRL-9190-7]
RIN-2060-AQ08


Action To Ensure Authority To Issue Permits Under the Prevention 
of Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Finding of Substantial Inadequacy and SIP Call

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to find that 13 States with EPA-approved 
State implementation plan (SIP) New Source Review Prevention of 
Significant Deterioration (PSD) programs are substantially inadequate 
to meet Clean Air Act (CAA) requirements because they do not appear to 
apply PSD requirements to GHG-emitting sources. For each of these 
States, EPA proposes to require the State (through a ``SIP Call'') to 
revise its SIP as necessary to correct such inadequacies. EPA proposes 
an expedited schedule for States to submit their corrective SIP 
revision, in light of the fact that as of January 2, 2011, certain GHG-
emitting sources will become subject to the PSD requirements and may 
not be able to obtain a PSD permit in order to construct or modify. As 
for the rest of the States with approved SIP PSD programs, EPA solicits 
comment on whether their PSD programs do or do not apply to GHG-
emitting sources. If, on the basis of information EPA receives, EPA 
concludes that the SIP for such a State does not apply the PSD program 
to GHG-emitting sources, then EPA will proceed to also issue a finding 
of substantial inadequacy and a SIP Call for that State.

DATES: Comments. Comments must be received on or before October 4, 
2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0107 by one of the following methods:
     https://www.regulations.gov: Follow the online instructions 
for submitting comments.
     E-mail: a-and-r-docket@epa.gov.
     Fax: (202) 566-9744.
     Mail: Attention Docket ID No. EPA-HQ-OAR-2010-0107, U.S. 
Environmental Protection Agency, EPA West (Air Docket), 1200 
Pennsylvania Avenue, NW., Mail code: 6102T, Washington, DC 20460. 
Please include a total of 2 copies. In addition, please mail a copy of 
your comments on the information collection provisions to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Attn: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 
20503.
     Hand Delivery: U.S. Environmental Protection Agency, EPA 
West (Air Docket), 1301 Constitution Avenue, NW., Room 3334, 
Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2010-0107. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0107. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The

[[Page 53893]]

https://www.regulations.gov Web Site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through https://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, avoid any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. 
For additional instructions on submitting comments, go to section I.C 
of the SUPPLEMENTARY INFORMATION section of this document.
    Docket. All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in https://www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Air Docket, EPA/DC, EPA West Building, Room 3334, 
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Air Docket is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, NC 27711; 
telephone number: (919) 541-3450; fax number: (919) 541-5509; e-mail 
address: sutton.lisa@epa.gov.

SUPPLEMENTARY INFORMATION: For questions related to a specific State, 
local, or tribal permitting authority, or to submit information 
requested in this action, please contact the appropriate EPA regional 
office:

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  EPA regional    Contact for regional office (person,
     office        mailing address, telephone number)                     Permitting authority
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I...............  Dave Conroy, Chief, Air Programs      Connecticut, Massachusetts, Maine, New Hampshire, Rhode
                   Branch, EPA Region 1, 5 Post Office   Island, and Vermont.
                   Square, Suite 100, Boston, MA 02109-
                   3912, (617) 918-1661.
II..............  Raymond Werner, Chief, Air Programs   New Jersey, New York, Puerto Rico, and Virgin Islands.
                   Branch, EPA Region 2, 290 Broadway,
                   25th Floor, New York, NY 10007-
                   1866, (212) 637-3706.
III.............  Kathleen Anderson, Chief, Permits     District of Columbia, Delaware, Maryland, Pennsylvania,
                   and Technical Assessment Branch,      Virginia, and West Virginia.
                   EPA Region 3, 1650 Arch Street,
                   Philadelphia, PA 19103-2029, (215)
                   814-2173.
IV..............  Dick Schutt, Chief, Air Planning      Alabama, Florida, Georgia, Kentucky, Mississippi, North
                   Branch, EPA Region 4, Atlanta         Carolina, South Carolina, and Tennessee.
                   Federal Center, 61 Forsyth Street,
                   SW, Atlanta, GA 30303-3104, (404)
                   562-9033.
V...............  J. Elmer Bortzer, Chief, Air          Illinois, Indiana, Michigan, Minnesota, Ohio, and
                   Programs Branch (AR-18J), EPA         Wisconsin.
                   Region 5, 77 West Jackson
                   Boulevard, Chicago, IL 60604-3507,
                   (312) 886-1430.
VI..............  Jeff Robinson, Chief, Air Permits     Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
                   Section, EPA Region 6, Fountain
                   Place 12th Floor, Suite 1200, 1445
                   Ross Avenue, Dallas, TX 75202-2733,
                   (214) 665-6435.
VII.............  Mark Smith, Chief, Air Permitting     Iowa, Kansas, Missouri, and Nebraska.
                   and Compliance Branch, EPA Region
                   7, 901 North 5th Street, Kansas
                   City, KS 66101, (913) 551-7876.
VIII............  Carl Daly, Unit Leader, Air           Colorado, Montana, North Dakota, South Dakota, Utah, and
                   Permitting, Monitoring & Modeling     Wyoming.
                   Unit, EPA Region 8, 1595 Wynkoop
                   Street, Denver, CO 80202-1129,
                   (303) 312-6416.
IX..............  Gerardo Rios, Chief, Permits Office,  Arizona; California; Hawaii and the Pacific Islands;
                   EPA Region 9, 75 Hawthorne Street,    Indian Country within Region 9 and Navajo Nation; and
                   San Francisco, CA 94105, (415) 972-   Nevada.
                   3974.
X...............  Nancy Helm, Manager, Federal and      Alaska, Idaho, Oregon, and Washington.
                   Delegated Air Programs Unit, EPA
                   Region 10, 1200 Sixth Avenue, Suite
                   900, Seattle, WA 98101, (206) 553-
                   6908.
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I. General Information

A. Does this action apply to me?

    Entities potentially affected by this rule include States, local 
permitting authorities, and tribal authorities.\1\ Any SIP-approved PSD 
air permitting regulation that is not structured such that it includes 
GHGs among pollutants subject to the PSD program will potentially be 
found to be substantially inadequate to meet CAA requirements, under 
CAA section 110(k)(5), and the State will potentially be affected by 
this rule. For example, if a State's PSD regulation identifies its 
regulated NSR pollutants by specifically listing each individual 
pollutant and the list omits GHGs, then the regulation is substantially 
inadequate.
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    \1\ EPA respects the unique relationship between the U.S. 
government and tribal authorities and acknowledges that tribal 
concerns are not interchangeable with State concerns. However, for 
convenience, we refer to ``States'' in this rulemaking to 
collectively mean States, local permitting authorities, and tribal 
authorities.
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    Entities potentially affected by this rule also include sources in 
all industry groups, which have a direct obligation under the CAA to 
obtain a PSD permit for GHGs for projects that meet the applicability 
thresholds set forth in the Tailoring Rule.\2\ This independent 
obligation on sources is specific to PSD and derives from CAA section 
165(a). Any source that is subject to a State PSD air permitting 
regulation not structured to apply to GHG-emitting sources will 
potentially rely on this rule to obtain a permit that contains emission 
limitations that conform to requirements under CAA section 165(a). The 
majority of entities potentially affected by this

[[Page 53894]]

action are expected to be in the following groups:
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    \2\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 
2010). The Tailoring Rule is described in more detail later in this 
preamble.

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             Industry group                         NAICS \a\
------------------------------------------------------------------------
Utilities (electric, natural gas, other  2211, 2212, 2213.
 systems).
Manufacturing (food, beverages,          311, 312, 313, 314, 315, 316.
 tobacco, textiles, leather).
Wood product, paper manufacturing......  321, 322.
Petroleum and coal products              32411, 32412, 32419.
 manufacturing.
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              3271, 3272, 3273, 3274, 3279.
 manufacturing.
Primary and fabricated metal             3311, 3312, 3313, 3314, 3315,
 manufacturing.                           3321, 3322, 3323, 3324, 3325,
                                          3326, 3327, 3328, 3329.
Machinery manufacturing................  3331, 3332, 3333, 3334, 3335,
                                          3336, 3339.
Computer and electronic products         3341, 3342, 3343, 3344, 3345,
 manufacturing.                           4446.
Electrical equipment, appliance, and     3351, 3352, 3353, 3359.
 component manufacturing.
Transportation equipment manufacturing.  3361, 3362, 3363, 3364, 3365,
                                          3366, 3366, 3369.
Furniture and related product            3371, 3372, 3379.
 manufacturing.
Miscellaneous manufacturing............  3391, 3399.
Waste management and remediation.......  5622, 5629.
Hospitals/nursing and residential care   6221, 6231, 6232, 6233, 6239.
 facilities.
Personal and laundry services..........  8122, 8123.
Residential/private households.........  8141.
Non-residential (commercial)...........  Not available. Codes only exist
                                          for private households,
                                          construction and leasing/sales
                                          industries.
------------------------------------------------------------------------
\a\ North American Industry Classification System.

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

    In addition to being available in the docket, an electronic copy of 
this proposal will also be available on the World Wide Web. Following 
signature by the EPA Administrator, a copy of this notice will be 
posted on the EPA's NSR Web Site, under Regulations & Standards, at 
https://www.epa.gov/nsr.

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

    1. Submitting CBI. Do not submit this information to EPA through 
https://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
as CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. Send or deliver information 
identified as CBI only to the following address: Roberto Morales, OAQPS 
Document Control Officer (C404-02), U.S. EPA, Research Triangle Park, 
NC 27711, Attention Docket ID No. EPA-HQ-OAR-2010-0107.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

D. How is the preamble organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related 
information?
    C. What should I consider as I prepare my comments for EPA?
    D. How is the preamble organized?
II. Overview of Proposed Rule
III. Background
    A. CAA and Regulatory Context
    B. State PSD SIPs
IV. Proposed Action: Finding of Substantial Inadequacy and SIP Call
    A. Introduction
    B. States With SIP PSD Applicability Provisions That Do Not 
Appear To Apply to GHG-Emitting Sources
    C. States With SIP PSD Applicability Provisions That Do Appear 
To Apply to GHG-Emitting Sources
    D. Proposed Finding of SIP Substantial Inadequacy and SIP Call; 
Solicitation of Comment
    E. Comment Period
    F. State Actions
    G. EPA Actions on SIP Submittals; Findings of Failure To Submit 
and Promulgation of FIPs
    H. Streamlining the State Process for SIP Development and 
Submittal
    I. Primacy of the SIP Process
    J. Sanctions
    K. Title V
V. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

[[Page 53895]]

    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
VI. Statutory Authority

II. Overview of Proposed Rule

    In this rulemaking, along with the companion rulemaking described 
elsewhere in this preamble, EPA is taking another in a series of 
actions concerning the PSD program for GHG-emitting sources that will 
begin on January 2, 2011. These two rulemakings take steps to assure 
that in 13 States that do not appear to have authority to issue PSD 
permits to GHG-emitting sources at present, either the State or EPA 
will have the authority to issue PSD permits by January 2, 2011. 
Although for most states, either the State or EPA is already authorized 
to issue PSD permits for GHG-emitting sources as of that date, our 
preliminary information shows that these 13 States have EPA-approved 
PSD programs that do not appear to include GHG-emitting sources and 
therefore do not appear to authorize these states to issue PSD permits 
to such sources. In this rulemaking, EPA proposes to find that these 13 
States' SIPs are substantially inadequate to comply with CAA 
requirements and, accordingly, proposes to issue a SIP Call to require 
a corrective SIP revision that applies their SIP PSD programs to GHG-
emitting sources. In a companion rulemaking, EPA proposes a FIP that 
would give EPA authority to apply EPA's PSD program to GHG-emitting 
sources in case such a State is unable to submit a corrective SIP 
revision by its deadline.
    Under the CAA PSD program, stationary sources must obtain a permit 
prior to undertaking construction or modification projects that would 
result in specified amounts of new or increased emissions of air 
pollutants that are subject to regulation under other provisions of the 
CAA. CAA sections 165(a), 169(1). The permit must, among other things, 
impose emission limitations associated with the best available control 
technology (BACT). CAA section 165(a)(4).
    In recent months, EPA has taken four related actions that, taken 
together, trigger PSD applicability for GHG sources on and after 
January 2, 2011, but limit the scope of PSD. These actions included, as 
they are commonly called, the ``Endangerment Finding'' and ``Cause or 
Contribute Finding,'' which were issued in a single final action,\3\ 
the ``Johnson Memo Reconsideration,'' \4\ the ``Light-Duty Vehicle 
Rule,'' \5\ and the ``Tailoring Rule.'' \6\ Taken together, these 
actions established regulatory requirements for GHGs emitted from new 
motor vehicles and new motor vehicle engines, determined that such 
regulations, when they take effect on January 2, 2011, will subject 
GHGs emitted from stationary sources to PSD requirements, and limited 
the applicability of PSD requirements to GHG sources on a phased-in 
basis.
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    \3\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \4\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010). This action finalizes EPA's response to a petition for 
reconsideration of ``EPA's Interpretation of Regulations that 
Determine Pollutants Covered by Federal Prevention of Significant 
Deterioration (PSD) Permit Program'' (commonly referred to as the 
``Johnson Memo''), December 18, 2008.
    \5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \6\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    We are taking this action on the basis of: Our analysis of the 
affected States' SIP provisions and other relevant State law; the 
States' analyses of their SIP provisions and State law, as indicated in 
letters sent to us as required under the Tailoring Rule; \7\ and direct 
consultation with the individual states and with the National 
Association of Clean Air Agencies (NACAA). As further described in 
section IV.D of this preamble, EPA compiled relevant provisions of the 
affected States' SIPs and other State law into a Technical Support 
Document for this rulemaking, which can be found in the docket for this 
rulemaking. Our analysis, along with information received from 
consulting with the states, indicates that the EPA-approved SIPs for 13 
States appear to not apply the PSD program to GHG sources. In many of 
these states, the SIP applicability provisions apply the PSD program to 
sources of specifically listed air pollutants and do not include GHGs. 
In one State, Connecticut, the SIP explicitly precludes the application 
of PSD to GHG-emitting sources. In other states, the SIP applicability 
provisions apply the PSD program generally to regulated pollutants, and 
these provisions, by their terms, cover GHGs; however, these states 
have other constitutional, State law, or SIP provisions that may limit 
their State laws or SIP requirements to applying only when specifically 
approved by the appropriate State authority. These constitutional or 
statutory provisions may limit the scope of the State PSD applicability 
provisions expressly to pollutants identified at a certain point in 
time as subject to PSD. For example, if the State has not yet expressly 
identified GHGs as subject to its PSD program, the authority to 
regulate GHG-emitting sources may not exist. As a result, absent 
further action, GHG sources that will be required to obtain a PSD 
permit for construction or modification on and after January 2, 2011, 
will be unable to obtain that permit and therefore may be unable to 
proceed with planned construction or modification in those states.
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    \7\ In the Tailoring Rule, EPA asked states to advise EPA by 
letter, within 60 days of publication of the Tailoring Rule, how the 
states intended to implement the requirements of the Tailoring Rule, 
including whether the states had authority to apply their PSD 
program to GHG-emitting sources.
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    In this rulemaking, we are proposing to find that under CAA section 
110(k)(5), the SIP for each of these 13 States is substantially 
inadequate to meet the CAA PSD requirements, and we are proposing a SIP 
Call to require that each affected State submit a corrective SIP 
revision that applies the PSD program to GHG sources. These states are 
listed in table IV-1, ``States with SIPs that Do Not Appear to Apply 
PSD to GHG Sources (Presumptive SIP Call List).''
    As for the remaining States with EPA-approved SIP PSD programs, our 
preliminary research indicates that their SIP PSD applicability 
provisions apply the PSD programs more broadly--for example, many apply 
to sources of ``regulated NSR pollutants''--and therefore appear to 
include GHG-emitting sources. Moreover, we have not to this point 
received information about other provisions in the State constitutional 
or other State or SIP law that would have the effect of limiting the 
applicability of the PSD provisions to exclude GHG-emitting sources. 
Those remaining States, which include all the states with EPA-approved 
PSD programs not listed in table IV-1, are listed in table IV-2, 
``States with SIPs that Appear to Apply PSD to GHG Sources (Presumptive 
Adequacy List).''
    Even so, we are aware of the possibility that some of those states 
may also have other State law provisions that may have the effect of 
limiting their PSD SIP requirements to applying only to pollutants 
specifically approved by the appropriate State authority, which would 
not include GHGs. In light of this possibility, we are soliciting 
comment on whether each of those remaining States' SIPs (see table IV-
2) apply PSD to GHG-emitting sources. If, for any such State, we 
receive information that leads us to conclude that its SIP does not 
apply PSD to GHG-emitting sources, we will take final action to issue a

[[Page 53896]]

finding of substantial inadequacy and a SIP Call for that State, on the 
same schedule as that for the 13 States.
    In a companion action to this rulemaking, we are proposing to 
promulgate, in any State that is not in a position to make a timely 
submittal of the corrective SIP revision, a FIP that will assure that 
sources will be able to obtain the necessary permits, with EPA as the 
permitting authority for GHG emissions.
    In view of the need for prompt action to eliminate or significantly 
limit any time period during which certain GHG sources are precluded 
from constructing or modifying because no entity has the authority to 
issue them permits, we intend to finalize this rulemaking action on or 
about December 1, 2010, and we propose in this rulemaking to give 
states a deadline of 12 months from the date we finalize to submit 
their corrective SIP revision. However, we are also proposing to 
authorize states to accept a shorter deadline, as short as three weeks 
from the date we finalize. If any State is not able to submit a 
corrective SIP revision by its deadline, then EPA, by virtue of the 
authority of the FIP provisions under CAA section 110(c), will 
immediately make a finding that the State has failed to submit the 
required SIP revision and will immediately promulgate the FIP.
    Some states may already be in the process of developing the legal 
authority needed and may be able to submit a SIP revision sooner than 
December 2010. EPA encourages states to take action as expeditiously as 
possible and will assist states as much as possible. Therefore, for 
each State for which EPA is proposing a SIP Call, it is possible that 
by January 2, 2011, when certain GHG sources in the State may be 
required to obtain PSD permits, the State would have the authority in 
place to act on the sources' permit applications. The availability of 
this authority to regulate GHGs would depend on whether the State 
submits a SIP revision before EPA finalizes this action or, 
alternatively, on which deadline the State receives for the corrective 
SIP submittal.
    We ask that, within the comment period for this action, each of the 
states listed in table IV-1 confirm to EPA that its SIP does not apply 
the PSD program to GHG-emitting sources. We also ask that within this 
comment period, every other State in the nation with an approved SIP 
(see table IV-2) review its SIP and inform EPA if its SIP does not 
apply the PSD program to GHG-emitting sources. Further, we ask that the 
states (see table IV-1) for which we are proposing a SIP Call identify 
the deadline--between 3 weeks and 12 months from the date of signature 
of the final SIP Call--that they would accept for submitting their 
corrective SIP revision. For example, assuming that, as we anticipate, 
this rulemaking is signed in final form by December 1, 2010, a State 
may specify that it would accept a SIP submittal deadline that falls 
between December 22, 2010, and December 1, 2011, inclusive.

III. Background

A. CAA and Regulatory Context

    EPA described the relevant background information in the Tailoring 
Rule. Knowledge of this background information is presumed and will be 
only briefly summarized here.
1. SIP PSD Requirements
    Under the CAA PSD requirements, a new or existing source that emits 
or has the potential to emit ``any air pollutant'' in the amounts of 
either 100 or 250 tons per year (tpy), depending on the source 
category, cannot construct or modify unless it first obtains a PSD 
permit that, among other things, imposes emission limitations that 
qualify as BACT. CAA sections 165(a)(1), 165(a)(4), 169(1). 
Longstanding EPA regulations have interpreted the term ``any air 
pollutant'' narrowly so that only emissions of any ``regulated NSR 
pollutant'' trigger PSD. 40 CFR 51.166(j)(1), 52.21(j)(2). The term 
``regulated NSR pollutant'' is defined to include the following four 
classes of air pollutants:
    (i) Any pollutant for which a NAAQS has been promulgated;
    (ii) any pollutant subject to an NSPS promulgated under CAA section 
111;
    (iii) any pollutant subject to a standard promulgated under CAA 
title VI; and
    (iv) ``any pollutant that otherwise is subject to regulation under 
the Act'' (excluding HAPs listed under CAA section 112). 40 CFR 
51.166(b)(49), 52.21(b)(50).
    The CAA contemplates that the PSD program be implemented in the 
first instance by the states and requires that states include PSD 
requirements in their SIPs. CAA section 110(a)(2)(C) requires that--

    Each implementation plan * * * shall * * * include a program to 
provide for * * * regulation of the modification and construction of 
any stationary source within the areas covered by the plan as 
necessary to assure that national ambient air quality standards are 
achieved, including a permit program as required in part[] C * * * 
of this subchapter.

    CAA section 110(a)(2)(J) requires that--

    Each implementation plan * * * shall * * * meet the applicable 
requirements of * * * part C of this subchapter (relating to 
significant deterioration of air quality and visibility protection).

CAA section 161 provides that--

    Each applicable implementation plan shall contain emission 
limitations and such other measures as may be necessary, as 
determined under regulations promulgated under this part [C], to 
prevent significant deterioration of air quality for such region * * 
* designated * * * as attainment or unclassifiable.

    These provisions, read in conjunction with the PSD applicability 
provision--which, as noted above, applies, by its terms, to ``any air 
pollutant,'' and which EPA has, through regulation, interpreted more 
narrowly as any ``NSR regulated pollutant''--and read in conjunction 
with other provisions, such as the BACT provision under CAA section 
165(a)(4), mandate that SIPs include PSD programs that are applicable 
to, among other things, any air pollutant that is subject to 
regulation, including, as discussed below, GHGs on and after January 2, 
2011.\8\
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    \8\ In the Tailoring Rule, we noted that commenters argued, with 
some variations, that the PSD provisions applied only to NAAQS 
pollutants, and not GHGs, and we responded that the PSD provisions 
apply to all pollutants subject to regulation, including GHGs. See 
75 FR 31560-62, ``Prevention of Significant Deterioration and Title 
V GHG Tailoring Rule: EPA's Response to Public Comments,'' May 2010, 
pp. 38-41. We maintain our position that the PSD provisions apply to 
all pollutants subject to regulation, and we incorporate by 
reference our discussion of this issue in the Tailoring Rule.
---------------------------------------------------------------------------

    A number of states do not have PSD programs approved into their 
SIPs. In those states, EPA's regulations at 40 CFR 52.21 govern, and 
either EPA or the State as EPA's delegatee acts as the permitting 
authority. On the other hand, most states have PSD programs that have 
been approved into their SIPs, and these states implement their PSD 
programs and act as the permitting authority. These approved SIPs are 
discussed in more detail below.
2. Recent EPA Regulatory Action Concerning PSD Requirements for GHG-
emitting Sources
    By notice dated December 15, 2009, pursuant to CAA section 202(a), 
EPA issued, in a single final action, two findings regarding GHGs that 
are commonly referred to as the ``Endangerment Finding'' and the 
``Cause or Contribute Finding.'' ``Endangerment and Cause or Contribute 
Findings for Greenhouse Gases Under Section 202(a) of the Clean Air 
Act,'' 74 FR 66496. In the Endangerment Finding, the Administrator 
found that six long-lived and directly emitted greenhouse gases--carbon 
dioxide (CO2), methane (CH4),

[[Page 53897]]

nitrous oxide (N2O), hydrofluorocarbons (HFCs), 
perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--may 
reasonably be anticipated to endanger public health and welfare. In the 
Cause or Contribute Finding, the Administrator ``define[d] the air 
pollutant as the aggregate group of the same six * * * greenhouse 
gases,'' 74 FR 66536, and found that the combined emissions of this air 
pollutant from new motor vehicles and new motor vehicle engines 
contribute to the GHG air pollution that endangers public health and 
welfare.
    By notice dated May 7, 2010, EPA published what is commonly 
referred to as the ``Light-Duty Vehicle Rule'' (LDVR), which for the 
first time established Federal controls on GHGs emitted from light-duty 
vehicles. ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324. In 
its applicability provisions, the LDVR specifies that it ``contains 
standards and other regulations applicable to the emissions of six 
greenhouse gases,'' including CO2, CH4, 
N2O, HFCs, PFCs, and SF6. 75 FR 25686 (40 CFR 
86.1818-12(a)).
    Shortly before finalizing the LDVR, by notice dated April 2, 2010, 
EPA published a notice commonly referred to as the Johnson Memo 
Reconsideration, which interpreted the term ``subject to regulation,'' 
a term that is one of the regulatory triggers for PSD applicability.\9\ 
The Johnson Memo Reconsideration concluded that for GHGs, promulgation 
of the LDVR would trigger PSD applicability for GHG-emitting sources on 
or after January 2, 2011, which according to EPA is the date upon which 
the LDVR takes effect.
---------------------------------------------------------------------------

    \9\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs,'' 75 FR 17004 
(finalizing EPA's response to a petition for reconsideration of 
``EPA's Interpretation of Regulations that Determine Pollutants 
Covered by Federal Prevention of Significant Deterioration (PSD) 
Permit Program'' (commonly referred to as the ``Johnson Memo''), 
December 18, 2008).
---------------------------------------------------------------------------

    By notice dated June 3, 2010, EPA published what is commonly 
referred to as the ``Tailoring Rule,'' \10\ which limits the 
applicability of PSD through a multi-step phase-in approach to only the 
highest-emitting GHG-emitting sources for a specified period of time, 
and not all GHG-emitting sources at the 100/250-tpy statutory 
thresholds. The Tailoring Rule established the first two steps of the 
approach, which take effect on January 2, 2011, and July 1, 2011, 
respectively. In the Tailoring Rule, EPA codified the Johnson Memo 
Reconsideration interpretation of the term ``subject to regulation'' 
and added a further interpretation of that term designed to expedite 
the adoption of the phase-in approach for PSD permitting for GHGs by 
the states into their SIPs. In addition, in the Tailoring Rule, EPA 
identified the air pollutant that, if emitted or potentially emitted by 
the source in excess of specified thresholds, would subject the source 
to PSD requirements, as the aggregate of the six GHGs, again, 
CO2, CH4, N2O, HFCs, PFCs, and 
SF6. The Tailoring Rule further provided that for purposes 
of determining whether the GHGs emitted (or potentially emitted) 
exceeded the specified thresholds, the amount of the GHGs must be 
calculated first on a mass emissions basis and then on a carbon dioxide 
equivalent (CO2e) basis. With respect to the latter, 
according to the rule, ``PSD * * * applicability is based on the 
quantity that results when the mass emissions of each of these [six] 
gases is multiplied by the Global Warming Potential (GWP) of that gas, 
and then summed for all six gases.'' 75 FR 31518. In the Tailoring 
Rule, we asked states to submit to us letters within 60 days of 
publication describing how they intended to incorporate into their SIPs 
the limitations on PSD applicability included in the rule's phase-in 
approach.
---------------------------------------------------------------------------

    \10\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 
2010).
---------------------------------------------------------------------------

    Further information on the Endangerment and Cause or Contribute 
Findings, the LDRV, the Johnson Memo Reconsideration, and the Tailoring 
Rule is contained in the Tailoring Rule.

3. SIP Inadequacy and Corrective Action

    The CAA provides a mechanism for the correction of flawed SIPs, 
under CAA section 110(k)(5), which provides:
    (5) Calls for plan revisions

    Whenever the Administrator finds that the applicable 
implementation plan for any area is substantially inadequate to * * 
* comply with any requirement of this Act, the Administrator shall 
require the State to revise the plan as necessary to correct such 
inadequacies. The Administrator shall notify the State of the 
inadequacies and may establish reasonable deadlines (not to exceed 
18 months after the date of such notice) for the submission of such 
plan revisions.

This provision by its terms authorizes the Administrator to ``find[] 
that [a SIP] * * * is substantially inadequate to * * * comply with any 
requirement of this Act,'' and, based on that finding, to ``require the 
State to revise the [SIP] * * * to correct such inadequacies.'' This 
latter action is commonly referred to as a ``SIP Call.'' In addition, 
this provision provides that EPA must notify the State of the 
substantial inadequacy and authorizes EPA to establish a ``reasonable 
deadline[] (not to exceed 18 months after the date of such notice)'' 
for the submission of the corrective SIP revision.
    If the State fails to submit the corrective SIP revision by the 
deadline, CAA section 110(c) authorizes EPA to ``find[] that [the] 
State has failed to make a required submission.'' CAA section 
110(c)(1)(A). Once EPA makes that finding, CAA section 110(c)(1) 
requires EPA to ``promulgate a Federal implementation plan at any time 
with 2 years after the [finding] * * * unless the State corrects the 
deficiency, and [EPA] approves the plan or plan revision, before [EPA] 
promulgates such [FIP].''

B. State PSD SIPs

1. SIP PSD Applicability Provisions
    As noted earlier in this preamble, most states have approved PSD 
SIPs. Most of those SIPs identify the pollutants addressed under their 
PSD program as any ``regulated NSR pollutant.'' This definition covers 
any ``pollutant subject to regulation'' and therefore, by its terms, in 
effect is automatically updating and needs no revision in order to 
cover pollutants that become subject to regulation under the CAA. As a 
result, these provisions cover GHG emissions when they become subject 
to regulation under other provisions of the CAA. See 40 CFR 
52.21(b)(50).
    However, EPA has become aware that a minority of approved SIPs fail 
to include this broad approach to identifying pollutants subject to PSD 
and instead simply list the individual pollutants by name. These SIPs 
do not identify GHGs as among the pollutants addressed under their PSD 
program. As a result, these applicability provisions, by their terms, 
do not appear to apply the PSD requirements to sources of GHGs when 
GHGs become ``subject to regulation'' under the CAA on January 2, 2011.
    In addition, the PSD SIP applicability provisions of one State that 
we are aware of, Connecticut, explicitly excludes CO2 as an 
``air pollutant,'' so that CO2 is not subject to PSD 
requirements.
2. Other Relevant State Law Provisions
    Some states may have other State laws, including other SIP 
provisions that bear upon the applicability of their PSD programs to 
GHG-emitting sources.
    First, some states may have in their SIPs some sort of ``general 
authority clause'' that affirms the State's legal authority to issue, 
and enforce

[[Page 53898]]

compliance with, permits that are consistent with Federal requirements. 
If one of the states listed in table IV-1 of this preamble as having a 
SIP that does not explicitly apply PSD to GHG emitters nevertheless has 
such a ``general authority clause,'' then the SIP, read as a whole, may 
be considered to apply PSD to GHG sources.
    For an example of the type of ``general authority clause'' that may 
have this effect, we refer to correspondence between the California Bay 
Area Air Quality Management District (BAAQMD) and EPA Region IX that is 
included in the docket for this rulemaking. In a letter dated October 
28, 2009, the BAAQMD proposed to exercise general authority in order to 
issue air permits to sources of PM2.5 even though its air 
permit regulations did not contain specific provisions for 
PM2.5 emissions. Under the proposed approach, with which EPA 
concurred, BAAQMD exercised general authority under the administrative 
requirements within its air permit regulations, which provide that the 
Air Pollution Control Officer ``may impose any permit condition that he 
deems reasonably necessary to insure compliance with Federal or 
California law or District regulations * * *.'' See Regulation 2-1-403 
included in the docket for this rulemaking.
    Second, some states may have, in their SIPs, statutes, or 
constitutions, a provision that precludes ``forward adoption,'' that 
is, that prevents the State law from incorporating by reference or 
otherwise adopting any requirements not specifically adopted by the 
State legislature or other State authority. In particular, some states 
may include a SIP PSD applicability provision that incorporates by 
reference (IBR) our Federal PSD rule at 40 CFR 52.21--including the 
definition of ``regulated NSR pollutant''--but that further provides 
that this IBR is not ``rolling'' and therefore is limited to only 
pollutants identified as regulated NSR pollutants as of the date the 
State adopted the PSD provision. Any of these provisions could limit 
the SIP PSD applicability rule to only the pollutants that were 
regulated as of the time the State adopted the PSD applicability rule, 
which means the SIP PSD program would not cover GHG-emitting sources 
until the State took specific action to that effect.

IV. Proposed Action: Finding of Substantial Inadequacy and SIP Call

A. Introduction

    Beginning on January 2, 2011, certain stationary sources that 
construct or undertake modifications will become subject to the CAA 
requirement to obtain a PSD permit for their GHG emissions. This is 
because of the following CAA statutory and EPA regulatory requirements: 
Under CAA sections 165(a) and 169(1), as interpreted through 
longstanding EPA regulations, PSD applies to sources that emit 
specified amounts of ``regulated NSR pollutants,'' which include 
specified air pollutants as well any other ``[air] pollutant'' that is 
``subject to regulation.'' 40 CFR 51.166(j)(1), (b)(49)(iv). By notice 
dated May 7, 2010, EPA promulgated the Light-Duty Vehicle Rule (LDVR), 
which establishes requirements for GHGs. 75 FR 25324. By the terms of 
the LDVR, these emission limits take effect on January 2, 2011. The 
LDVR identified the GHGs to which it applies as a single air pollutant 
that consists of CO2, CH4, N2O, HFCs, 
PFCs, and SF6. The LDVR followed EPA's Endangerment and 
Cause or Contribute Findings, issued by notice dated December 15, 2009, 
by which EPA found that GHGs--defined to include the same six 
constituents--may reasonably be anticipated to endanger public health 
and welfare. By notice dated April 2, 2010, EPA promulgated the Johnson 
Memo Reconsideration. 75 FR 17004. In this action, EPA made clear that 
the regulation of GHGs by the LDVR will trigger the applicability of 
PSD requirements to GHG-emitting stationary sources as of January 2, 
2011, because GHGs will become ``subject to regulation'' through the 
LDVR. By notice dated June 3, 2010, EPA promulgated the Tailoring Rule, 
which narrows PSD applicability to specified GHG-emitting sources on a 
specified phase-in schedule and makes clear that GHGs--defined as the 
same single pollutant, with six constituent gases, as described in the 
LDVR--are the ``[air] pollutant'' to which PSD requirements apply. 75 
FR 31514. Pursuant to the Tailoring Rule, PSD permitting requirements 
for construction or modification will apply to certain GHG-emitting 
stationary sources beginning on January 2, 2011, for the first step of 
the Tailoring Rule, and beginning on July 1, 2011, for the second step 
of the Tailoring Rule.
    A number of states do not have an approved PSD SIP; as a result, in 
these states \11\ the applicable regulatory authority is EPA's 
regulations, found in 40 CFR 52.21, which constitute a FIP. For sources 
in these states, either the EPA Regional Office or the State acting as 
EPA's delegatee is the permitting authority. Because EPA's regulations 
apply directly, sources in these states that emit GHGs will become 
subject to PSD for their GHG emissions, to the extent provided under 
the Tailoring Rule, on January 2, 2011. These sources will be able, on 
and after January 2, 2011, to apply for and receive in due course their 
PSD permits either from EPA directly or from those State permitting 
authorities acting on EPA's behalf.
---------------------------------------------------------------------------

    \11\ In the following listed State or local jurisdictions, as 
well as in all Indian country, EPA is the PSD permitting authority, 
implementing the Federal PSD regulation at 40 CFR 52.21: American 
Samoa; Arizona (some areas); California (most areas); District of 
Columbia; Guam; Massachusetts; New Jersey; New York; Northern 
Mariana Islands; Puerto Rico; Trust Territories; and the Virgin 
Islands. In a smaller number of areas, listed as follows, the State 
or local permitting authority is delegated at least partial 
authority by EPA to implement the Federal PSD regulation: Arizona 
(some areas); California (some areas); Hawaii; Illinois; Minnesota; 
Nevada (most areas); Pennsylvania (some areas); and Washington.
---------------------------------------------------------------------------

    All of the other states administer their PSD program through an 
approved SIP and, as a result, they or their local entities are the PSD 
permitting authority. This rulemaking concerns whether those approved 
SIP PSD programs include GHG-emitting sources and, for those that do 
not, the steps that EPA will take to assure that a PSD permit program 
that includes GHGs is in place.

B. States With SIP PSD Applicability Provisions That Do Not Appear To 
Apply to GHG-Emitting Sources

    Our review of the SIPs and other authorities, as well as 
consultation with states, as described further in section IV.D of this 
preamble and the Technical Support Document included in the docket for 
this rulemaking, indicates that for 13 of the states with approved PSD 
SIPs, the PSD programs of their SIPs do not appear to apply to GHG-
emitting sources. These states are listed in table IV-1, ``States with 
SIPs that Do Not Appear to Apply PSD to GHG Sources (Presumptive SIP 
Call List).'' In a number of these SIPs, the PSD applicability 
provisions do not mirror EPA's regulatory provisions by applying PSD 
requirements to sources of any air pollutant ``subject to regulation''; 
instead, the PSD applicability provisions specifically list the air 
pollutants to which the PSD program applies and do not include GHGs on 
that list. As a result, the PSD applicability provisions do not, by 
their terms, cover GHG-emitting sources.
    In addition, Connecticut's SIP appears by its terms to preclude the 
application of PSD to GHG-emitting sources.
    Further, some of these states have SIP PSD provisions that by their 
terms apply PSD to regulated NSR pollutants, or

[[Page 53899]]

have a substantially similarly phrased requirement, but also have State 
constitutional or other statutory or SIP provisions that appear to have 
the effect of limiting PSD applicability to air pollutants identified 
on a certain date. Therefore, State law, read as whole, would not 
appear to apply PSD requirements to GHGs until the appropriate State 
authority takes action to specifically subject PSD to GHGs, and the 
State has not yet done so.
    We conclude that the states with SIPs or State law with these 
provisions do not appear to apply the PSD program to GHG-emitting 
sources, and we are including them in table IV-1. We recognize that 
stakeholders may have other interpretations of these provisions, and we 
solicit comments from stakeholders on their interpretations. In 
addition, some of these SIPs may include what we will refer to as a 
``general authority provision,'' which is a provision for the State to 
issue PSD permits that comply with EPA requirements, as described 
earlier in this preamble. If so, it is possible that these provisions 
could be interpreted to authorize the State in some cases to issue to 
GHG sources PSD permits that incorporate EPA's regulatory requirements, 
as found in 40 CFR 51.166. As a result, we consider table IV-1 to be a 
presumptive SIP Call list.

   Table IV-1--States with SIPs that Do Not Appear to Apply PSD to GHG
                   Sources (Presumptive SIP Call List)
------------------------------------------------------------------------
                 State (or area)                        EPA  region
------------------------------------------------------------------------
Alaska...........................................  X
Arizona: Pinal County; Rest of State (Excludes     IX
 Maricopa County, Pima County, and Indian
 Country).
Arkansas.........................................  VI
California: Sacramento Metropolitan AQMD.........  IX
Connecticut......................................  I
Florida..........................................  IV
Idaho............................................  X
Kansas...........................................  VII
Kentucky: Jefferson County; Rest of State........  IV
Nebraska.........................................  VII
Nevada: Clark County.............................  IX
Oregon...........................................  X
Texas............................................  VI
------------------------------------------------------------------------

C. States With SIP PSD Applicability Provisions That Do Appear To Apply 
to GHG-Emitting Sources

    On the other hand, as noted above, for most of the states with 
approved SIPs, those SIPs generally apply PSD to sources of any 
``regulated NSR pollutant,'' and we have not received information 
indicating that the State law includes other provisions that may have 
the effect of precluding PSD from applying to GHG-emitting sources. As 
a result, EPA is including a list of states with presumptively adequate 
SIPs in table IV-2, ``States with SIPs That Appear To Apply PSD to GHG 
Sources (Presumptive Adequacy List).''

  Table IV-2--States With SIPs That Appear To Apply PSD to GHG Sources
                       (Presumptive Adequacy List)
------------------------------------------------------------------------
                 State (or area)                        EPA  region
------------------------------------------------------------------------
Alabama: Jefferson County; Huntsville; Rest of     IV
 State.
California: Mendocino County AQMD; Monterey Bay    IX
 Unified APCD; North Coast Unified AQMD; Northern
 Sonoma County APCD.
Colorado.........................................  VIII
Delaware.........................................  III
Georgia..........................................  IV
Indiana..........................................  V
Iowa.............................................  VII
Louisiana........................................  VI
Maine............................................  I
Maryland.........................................  III
Michigan.........................................  V
Mississippi......................................  IV
Missouri.........................................  VII
Montana..........................................  VIII
New Hampshire....................................  I
New Mexico: Albuquerque; Rest of State...........  VI
North Carolina: Forsythe County; Mecklenburg;      IV
 Western NC; Rest of State.
North Dakota.....................................  VIII
Ohio.............................................  V
Oklahoma.........................................  VI
Pennsylvania: All except Allegheny County........  III
Rhode Island.....................................  I
South Carolina...................................  IV
South Dakota.....................................  VIII
Tennessee: Chattanooga; Nashville; Knoxville;      IV
 Memphis; Rest of State.
Vermont..........................................  I
Virginia.........................................  III

[[Page 53900]]

 
West Virginia....................................  III
Wisconsin........................................  V
Wyoming..........................................  VIII
Utah.............................................  VIII
------------------------------------------------------------------------

    We have developed these two lists of states--one listing states 
whose PSD program appears to not apply to GHG-emitting sources and one 
listing states whose program appears to cover such sources--based on 
our own preliminary research, consultation with states, and review of 
the 60-day letters, described earlier in this preamble, submitted thus 
far by states in response to the Tailoring Rule. As explained elsewhere 
in this preamble, we ask that each State with an approved SIP submit 
information during the comment period for this rulemaking pertinent to 
whether its SIP--including the PSD applicability provisions and any 
other relevant provisions--covers GHG-emitting sources.

D. Proposed Finding of SIP Substantial Inadequacy and SIP Call; 
Solicitation of Comment

    For each of the states listed in table IV-1 of this preamble, we 
propose to issue a finding that the SIP is ``substantially inadequate * 
* * to * * * comply with [the PSD] requirement[s]'' and to ``require 
the State to revise the plan as necessary to correct such 
inadequacies,'' i.e., to issue a SIP Call. CAA section 110(k)(5). For 
each of these states, the SIP appears to not apply the PSD program to 
GHG-emitting sources.
    In consultation with the affected states, EPA compiled relevant 
provisions of the affected States' SIPs and other State law into a 
Technical Support Document for this rulemaking. The Technical Support 
Document, which can be found in the docket for this rulemaking, 
presents the basis for EPA's proposed finding of substantial inadequacy 
for the states listed in table IV-1.
    As discussed elsewhere in this preamble, we invite comment on this 
proposal. For any State listed in table IV-1, if we do not receive any 
further information from the State or other commenters, we expect to 
finalize our proposed finding and SIP Call. Also for any State listed 
in table IV-1, if we do receive additional information that our 
interpretation of these provisions is incorrect or that the SIP 
includes a general authority provision so that, read as a whole, the 
SIP applies the PSD program to GHG sources, we will not finalize our 
proposed finding and SIP Call.
    Our basis for the proposed finding--and the proposed SIP Call that 
is based on this finding--is that CAA section 110(k)(5) provides that 
EPA may make the finding when the SIP is ``substantially inadequate * * 
* to * * * comply with any requirement of [the CAA],'' and this 
includes the PSD requirements. As discussed earlier in this preamble, 
SIPs are required to include PSD programs that apply to sources that 
emit pollutants subject to regulation; as a result, the SIPs at issue 
merit a finding of substantial inadequacy because they fail to apply 
the PSD program to GHG-emitting sources on and after January 2, 2011.
    For all other states with approved PSD SIPs--which are the ones 
listed in table IV-2--we solicit comment on whether their SIPs, read as 
a whole, apply the PSD program to GHG-emitting sources. If, on the 
basis of additional information, we conclude that their PSD programs do 
not apply to GHG-emitting sources, we will issue a final finding of 
substantial inadequacy and SIP Call on the same schedule as that for 
any of the states for which we are issuing a proposed finding and SIP 
Call.
    We recognize that PSD requirements will not apply to GHG-emitting 
sources until January 2, 2011, but that for any State for which we 
finalize a finding of substantial inadequacy and a SIP Call, our plan 
is to do so approximately one month in advance of that date. EPA 
believes this timing is justified. SIPs must include, at least a month 
prior to January 2, 2011, a provision applying PSD requirements to GHG-
emitting sources as of January 2, 2011, in order to give sources notice 
that the requirement applies and that the State will act as the 
permitting authority. We recognize that as a practical matter, some 
states may wish that we impose a FIP effective as of January 2, 2011, 
in order to avoid any period of time when the GHG-emitting sources 
identified in the Tailoring Rule as subject to PSD are unable to obtain 
a permit due to lack of a permitting authority. We cannot impose a FIP 
until we have first finalized the SIP Call and given the State a 
reasonable period of time to make the corrective SIP submission. EPA 
strongly believes that this necessarily entails, for those states, 
finalizing the SIP Call prior to January 2, 2011.
    After the close of the comment period for this proposed action, we 
will review all comments. If we determine that the PSD SIP for any 
State either by its terms does not apply to sources of GHGs or has 
conflicting provisions that create ambiguity as to whether it applies 
to sources of GHGs (such as an applicability provision that explicitly 
excludes GHG sources, coupled with a general-authority provision that 
could be read to authorize permitting of GHG sources), then, for that 
State, we will finalize the finding that the SIP is ``substantially 
inadequate * * * to * * * comply with [the PSD] requirement[s].'' At 
the same time, we will finalize a SIP Call for that State. We will make 
the finding of substantial inadequacy, notify the State that we have 
made the finding, and issue the SIP Call in a final action that we 
intend to sign on or about December 1, 2010, and submit for publication 
in the Federal Register as soon as possible thereafter. We will notify 
the State of the finding of substantial inadequacy by letter and by 
posting the signed action on our Web Site. In view of the urgency of 
the task, which is to ensure that a PSD permitting authority for 
affected GHG sources is in place by January 2, 2011, we propose to give 
the final SIP Call an effective date of its publication date. We 
recognize that this process is highly expedited, but we believe that 
this is essential to maximize our and the States' opportunity to put in 
place a permitting authority to process PSD permit applications 
beginning on January 2, 2011, without which sources may be unable to 
proceed with plans to construct or modify. Commenters should feel free 
to advise us if they believe a different approach can achieve this 
goal.

[[Page 53901]]

E. Comment Period

    In order to deepen our understanding of what provisions are in the 
relevant PSD SIPs, and how they are to be interpreted, as well as to 
ensure that we have a comprehensive picture of all the SIPs in this 
regard, we ask each State to give us the following information by the 
close of the comment period on this rule:
1. States With SIP PSD Applicability Provisions That Do Not Appear To 
Include GHGs
    We ask that each of the states listed in table IV-1 of this 
preamble--for which we have information that their SIP PSD 
applicability provisions do not include GHGs, and for which we propose 
a finding of substantial inadequacy and a SIP Call--provide the 
following information by the end of the comment period for this action:
    (a) Confirm, with citations and a copy of the relevant language, 
that the SIP PSD applicability provisions do not explicitly include GHG 
sources;
    (b) Identify and provide a copy of any provision that specifically 
precludes PSD applicability for GHG sources;
    (c) Identify and provide a copy of any provision of State 
constitution or other law, including the SIP, that may be read to limit 
the applicability of the PSD program to pollutants identified at a 
certain point in time, and therefore not to GHGs.
    (d) Indicate, with citations and a copy of the relevant language, 
if any, whether the SIP includes general authority for the State to 
issue PSD permits that meet EPA requirements;
    (e) Indicate, with citations and a copy of the relevant language, 
any other provisions of the SIP or State law that may bear on the 
applicability of the PSD program to GHG-emitting sources.
    (f) Indicate the State's interpretation as to whether the SIP, read 
as a whole, does or does not apply the PSD program to GHG sources or 
authorize the State to issue PSD permits for GHG sources that meet EPA 
requirements. This statement should be made by the commissioner or 
general counsel of the State environmental agency, or by the 
counterpart at the local or tribal level, or by the State Attorney 
General.
    (g) If the SIP, read as a whole, does not apply the PSD program to 
GHG sources or authorize the issuance of permits to GHG sources, 
indicate whether the State plans to develop adequate authority to apply 
the PS