Action To Ensure Authority To Implement Title V Permitting Programs Under the Greenhouse Gas Tailoring Rule, 82254-82269 [2010-32757]
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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations
review is limited to only those
objections that were raised with
reasonable specificity in timely
comments. 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.
VI. Statutory Authority
The statutory authority for this action
is provided by sections 110, 165, 301,
and 307(d)(1)(B) of the CAA as amended
(42 U.S.C. 7410, 7475, 7601, and
7407(d)(1)(B)). This action is subject to
section 307(d) of the CAA (42 U.S.C.
7407(d)).
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon dioxide,
Carbon dioxide equivalents, Carbon
monoxide, Environmental protection,
Greenhouse gases, Hydrofluorocarbons,
Incorporation by reference,
Intergovernmental relations, Lead,
Methane, Nitrogen dioxide, Nitrous
oxide, Ozone, Particulate matter,
Perfluorocarbons, Reporting and
recordkeeping requirements, Sulfur
hexafluoride, Sulfur oxides, Volatile
organic compounds.
Dated: December 23, 2010.
Lisa P. Jackson,
Administrator.
For the reasons set out in the
preamble, title 40, chapter I of the Code
of Federal Regulations is amended as
follows:
■
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.1987 is revised to read
as follows:
■
§ 52.1987
quality.
Significant deterioration of air
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*
*
*
*
*
(d) The requirements of sections 160
through 165 of the Clean Air Act are not
met for greenhouse gases since the plan
does not include approvable procedures
for permitting major sources of
greenhouse gas emissions. Therefore,
the Oregon Department of
Environmental Quality rules identified
in paragraph (a) of this section, and the
Lane Regional Air Pollution Authority
rules identified in paragraph (b) of this
section, are hereby incorporated by
reference with the following changes
and made part of the applicable plan for
the State of Oregon:
(1) The definition of ‘‘Regulated NSR
pollutant’’ at § 52.21(b)(50) and the
definition of ‘‘Subject to regulation’’ at
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§ 52.21(b)(49) are incorporated by
reference, replacing the definition of
‘‘Regulated air pollutant’’ at OAR 340–
200–0020(97), for the purpose of
greenhouse gases only;
(2) The provisions of § 52.21(q) Public
participation are incorporated by
reference for the purposes of EPA
permits issued pursuant to this
paragraph; and
(3) All references to ‘‘Director’’ in the
Oregon Department of Environmental
Quality rules and the Lane Regional Air
Pollution Authority rules incorporated
in this paragraph shall mean the EPA
Administrator for the purposes of EPA
permits issued pursuant to this
paragraph.
3. Section 52.37 is added to read as
follows:
■
§ 52.37 What are the requirements of the
Federal Implementation Plans (FIPs) to
issue permits under the Prevention of
Significant Deterioration requirements to
sources that emit greenhouse gases?
(a) The requirements of sections 160
through 165 of the Clean Air Act are not
met to the extent the plan, as approved,
of the states listed in paragraph (b) of
this section does not apply with respect
to emissions of the pollutant GHGs from
certain stationary sources. Therefore,
the provisions of § 52.21 except
paragraph (a)(1) are hereby made a part
of the plan for each state listed in
paragraph (b) of this section for:
(1) Beginning January 2, 2011, the
pollutant GHGs from stationary sources
described in § 52.21(b)(49)(iv), and
(2) beginning July 1, 2011, in addition
to the pollutant GHGs from sources
described under paragraph (a)(1) of this
section, stationary sources described in
§ 52.21(b)(49)(v).
(b) Paragraph (a) of this section
applies to:
(1) Arizona, Pinal County; Rest of
State (Excludes Maricopa County, Pima
County, and Indian Country);
(2) Arkansas;
(3) Florida;
(4) Idaho;
(5) Kansas;
(6) Wyoming.
(c) For purposes of this section, the
‘‘pollutant GHGs’’ refers to the pollutant
GHGs, as described in § 52.21(b)(49)(i).
[FR Doc. 2010–32784 Filed 12–29–10; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 52 and 70
[EPA–HQ–OAR–2009–0517; FRL–9245–4]
RIN 2060–AQ63
Action To Ensure Authority To
Implement Title V Permitting Programs
Under the Greenhouse Gas Tailoring
Rule
Environmental Protection
Agency (EPA).
ACTION: Final Rule.
AGENCY:
The final greenhouse gas
(GHG) Tailoring Rule includes a stepby-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
narrowing its previous approval of
certain State permitting thresholds for
GHG emissions so that only sources that
equal or exceed the GHG thresholds
established in the final Tailoring Rule
would be covered as major sources by
the Federally-approved programs in the
affected States. By raising the GHG
thresholds that apply title V permitting
to major sources in the affected States,
this final rule will reduce the number of
sources that will be issued Federallyenforceable 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
December 30, 2010.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2009–0517. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
https://www.regulations.gov or in hard
copy at the EPA Docket Center EPA/DC,
EPA West, Room 3334, 1301
Constitution Avenue, Northwest,
Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
SUMMARY:
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legal holidays. The telephone number
for the Public Reading Room is (202)
566–1744, and the telephone number for
the EPA Docket Center is (202) 566–
1742.
Mr.
Jeff Herring, Air Quality Policy Division,
FOR FURTHER INFORMATION CONTACT:
Office of Air Quality Planning and
Standards (C504–03), Environmental
Protection Agency, Research Triangle
Park, NC 27711; telephone number:
(919) 541–3195; fax number: (919) 541–
5509; e-mail address:
herring.jeff@epa.gov.
82255
For
information related to a specific State,
local, or Tribal permitting authority,
please contact the appropriate EPA
regional office:
SUPPLEMENTARY INFORMATION:
EPA regional office
Contact for regional office (person, mailing address,
telephone number)
Permitting authority
I ............................................
Dave Conroy, Chief, Air Programs Branch, EPA Region
1, 5 Post Office Square, Suite 100, Boston, MA
02109–3912, (617) 918–1661.
Raymond Werner, Chief, Air Programs Branch, EPA
Region 2, 290 Broadway, 25th Floor, New York, NY
10007–1866, (212) 637–3706.
Kathleen Cox, Chief, Permits and Technical Assessment Branch, EPA Region 3, 1650 Arch Street,
Philadelphia, PA 19103–2029, (215) 814–2173.
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.
J. Elmer Bortzer, Chief, Air Programs Branch (AR–18J),
EPA Region 5, 77 West Jackson Boulevard, Chicago, IL 60604–3507, (312) 886–1430.
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.
Mark Smith, Chief, Air Permitting and Compliance
Branch, EPA Region 7, 901 North 5th Street, Kansas
City, KS 66101, (913) 551–7876.
Carl Daly, Unit Leader, Air Permitting, Monitoring &
Modeling Unit, EPA Region 8, 1595 Wynkoop Street,
Denver, CO 80202–1129, (303) 312–6416.
Gerardo Rios, Chief, Permits Office, EPA Region 9, 75
Hawthorne Street, San Francisco, CA 94105, (415)
972–3974.
Nancy Helm, Manager, Federal and Delegated Air Programs Unit, EPA Region 10, 1200 Sixth Avenue,
Suite 900, Seattle, WA 98101, (206) 553–6908.
Connecticut, Massachusetts, Maine, New Hampshire,
Rhode Island, and Vermont.
II ...........................................
III ..........................................
IV ..........................................
V ...........................................
VI ..........................................
VII .........................................
VIII ........................................
IX ..........................................
X ...........................................
I. General Information
A. Does this action apply to me?
Entities affected by this action include
States, local permitting authorities, and
Tribal authorities.
New Jersey, New York, Puerto Rico, and Virgin Islands.
District of Columbia, Delaware, Maryland, Pennsylvania, Virginia, and West Virginia.
Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, and Tennessee.
Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.
Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas.
Iowa, Kansas, Missouri, and Nebraska.
Colorado, Montana, North Dakota, South Dakota, Utah,
and Wyoming.
Arizona; California; Hawaii and the Pacific Islands; Indian Country within Region 9 and Navajo Nation; and
Nevada.
Alaska, Idaho, Oregon, and Washington.
Entities potentially affected by this
rule also include sources in all industry
groups, which have a direct obligation
under the Clean Air Act (CAA or Act)
to apply for and operate pursuant to a
title V permit for GHGs that meet the
applicability thresholds set forth in the
Tailoring Rule. The majority of entities
potentially affected by this action are
expected to be in the following groups:
NAICS a
Agriculture, fishing, and hunting ...............................................................
Mining .......................................................................................................
Utilities (electric, natural gas, other systems) ..........................................
Manufacturing (food, beverages, tobacco, textiles, leather) ....................
Wood product, paper manufacturing ........................................................
Petroleum and coal products manufacturing ...........................................
Chemical manufacturing ...........................................................................
Rubber product manufacturing .................................................................
Miscellaneous chemical products .............................................................
Nonmetallic mineral product manufacturing .............................................
Primary and fabricated metal manufacturing ...........................................
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Industry group
11.
21.
2211, 2212, 2213.
311, 312, 313, 314, 315, 316.
321, 322.
32411, 32412, 32419.
3251, 3252, 3253, 3254, 3255, 3256, 3259.
3261, 3262.
32552, 32592, 32591, 325182, 32551.
3271, 3272, 3273, 3274, 3279.
3311, 3312, 3313, 3314, 3315, 3321, 3322, 3323, 3324, 3325, 3326,
3327, 3328, 3329.
3331, 3332, 3333, 3334, 3335, 3336, 3339.
3341, 3342, 3343, 3344, 3345, 4446.
3351, 3352, 3353, 3359.
3361, 3362, 3363, 3364, 3365, 3366, 3366, 3369.
3371, 3372, 3379.
3391, 3399.
5622, 5629.
Machinery manufacturing .........................................................................
Computer and electronic products manufacturing ...................................
Electrical equipment, appliance, and component manufacturing ............
Transportation equipment manufacturing .................................................
Furniture and related product manufacturing ...........................................
Miscellaneous manufacturing ...................................................................
Waste management and remediation ......................................................
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Industry group
NAICS a
Hospitals/nursing and residential care facilities .......................................
Personal and laundry services .................................................................
Residential/private households .................................................................
Non-residential commercial ......................................................................
6221, 6231, 6232, 6233, 6239.
8122, 8123.
8141.
Not available. Codes only exist for private households, construction,
and leasing/sales industries.
a North
American Industry Classification System.
B. How is this preamble organized?
The information presented in this
preamble is organized as follows:
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I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
II. Overview of the Final Rule
III. Proposed Rule
IV. Final Rule
A. Narrowing of Title V Programs Under
Parts 70 and 52
B. Legal Basis
1. Title V Applicability
2. Minimum Requirements for Approved
Title V Programs
3. Basis for Reconsideration and Narrowing
of Approval
C. Authority for EPA Action
V. Comments and Responses
VI. Effective Date
VII. Statutory and Executive Orders Reviews
A. Executive Order 12866—Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132—Federalism
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045—Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211—Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898—Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
II. Overview of the Final Rule
This action finalizes EPA’s proposal
to narrow the approval of title V
operating permit programs that we
included in what we call the proposed
Tailoring Rule, ‘‘Prevention of
Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule:
Proposed Rule,’’ 74 FR 55292, 55340
(October 27, 2009). EPA finalized the
Tailoring Rule by Federal Register
notice dated June 3, 2010, ‘‘Prevention
of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule: Final
Rule,’’ 75 FR 31,514.
In the final Tailoring Rule, EPA
narrowed the applicability of title V to
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GHG-emitting sources at or above
specified thresholds by setting
thresholds at which GHG emissions
become subject to regulation for
Prevention of Significant Deterioration
(PSD) and title V purposes.1 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
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
emissions only if, as of July 1, 2011, it
emits GHGs at or above 100,000 tpy
measured on a carbon dioxide
equivalent (CO2e) basis, and it also
emits GHGs at levels at or above the
statutory 100 tpy mass-based threshold
generally applicable to all pollutants
subject to regulation. The Tailoring Rule
thresholds alleviate the overwhelming
administrative burdens and costs that
using the statutory thresholds alone for
the permitting thresholds would place
on title V permitting authorities and
sources.
However, in proposing the Tailoring
Rule, EPA recognized that even after it
finalized the Tailoring Rule, some
approved State title V programs
would—until they were revised—
continue to use the statutory thresholds
for purposes of the permitting
thresholds, even though the States
would not have sufficient resources to
implement the title V program at those
levels. Accordingly, the proposed
Tailoring Rule included a proposal to
limit EPA’s previous approval of title V
programs to the extent those provisions
required permits for sources whose
1 Only the title V provisions are relevant for this
action.
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emissions of GHG equal or exceed 100
tpy but are less than the permitting
threshold of the Tailoring Rule.2 When
EPA finalized the Tailoring Rule, EPA
did not finalize that part of the proposal.
Instead, EPA waited to collect more
information from the States to
determine whether such action was
necessary, and if so, for which States.
As detailed in the following, EPA is
now finalizing that part of the Tailoring
Rule proposal for most permitting
authorities.
EPA asked States to submit
information—in the form of letters due
within 60 days of publication of the
Tailoring Rule (which we refer to as the
60-day letters)—that would help EPA
determine whether it needed to narrow
its approval of any title V programs.
Some States informed EPA in their ‘‘60
day letters’’ or subsequently that they
have adequate authority to issue permits
to sources of GHGs and that they have
interpreted the requirements of their
approved title V programs consistent
with the final Tailoring Rule thresholds.
Other States and permitting authorities
either indicated that their programs
would require changes to permit GHG
sources at the final Tailoring Rule
thresholds, or did not provide a clear
indication of the scope of their title V
programs with respect to GHG sources.
Thus, in this action, EPA is narrowing
its previous approval of most State title
V programs to the extent the programs
require title V permits for sources of
GHG emissions below the Tailoring
Rule thresholds. The other portions of
these title V programs, including
portions requiring permits for
GHG-emitting sources with emissions at
or above the Tailoring Rule thresholds,
remain approved. States affected by this
rule will not be required to take any
action under the Federal CAA 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
2 The permitting threshold originally proposed for
the Tailoring Rule was 25,000 tpy CO2e. After
considering public comment on the proposal, EPA
increased its estimates of the costs and burdens of
permitting and finalized a permitting threshold of
100,000 tpy CO2e.
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the final Tailoring Rule threshold of
100,000 tpy CO2e (and 100 tpy mass
basis). This action ensures that the
Federally-approved programs applicable
in the affected States do not require title
V permitting for sources due to their
status as major sources of GHG
emissions as of January 2, 2011.
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III. Proposed Rule
We assume familiarity here with the
statutory and regulatory background
discussed in the preambles for the
Tailoring Rule proposal and final action,
and will only briefly summarize that
background here.
Title V of the CAA requires, among
other things, a ‘‘major source’’ to obtain
an operating permit that: consolidates
all CAA requirements applicable to the
source into a document; includes
conditions necessary to assure
compliance with such requirements;
provides for review of these documents
by EPA, States, and the public; and
requires permit holders to track, report,
and annually certify their compliance
status with respect to their permit
requirements.
A ‘‘major source’’ is defined to
include, among other things, a source
that actually emits or has the potential
to emit 100 tpy or more of ‘‘any air
pollutant.’’ CAA sections 501(2), 302(j).
See also 40 CFR 70.2 and 71.2. Since
1993, EPA has interpreted the CAA to
define a ‘‘major source’’ for purposes of
title V to include any source that emits,
or has the potential to emit, at least 100
tpy of an air pollutant subject to
regulation under the CAA.
Memorandum from Lydia N. Wegman,
Deputy Director, Office of Air Quality
Planning and Standards, U.S. EPA,
‘‘Definition of Regulated Air Pollutant
for Purposes of Title V’’ (Apr. 26, 1993);
75 FR 31553–54.
In recent months, EPA completed four
distinct actions related to regulation of
GHGs under the CAA. These actions
include, as they are commonly called,
the ‘‘Endangerment Finding’’ and ‘‘Cause
or Contribute Finding,’’ which we issued
in a single final action,3 the ‘‘Johnson
Memo Reconsideration’’ (also called the
‘‘Timing Decision’’),4 the ‘‘Light-Duty
Vehicle Rule’’ (LDVR, or simply the
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.
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‘‘Vehicle Rule’’),5 and the ‘‘Tailoring
Rule.’’ 6 In the Endangerment Finding,
which is governed by CAA § 202(a), the
Administrator exercised her judgement,
based on an exhaustive review and
analysis of the science, to conclude that
‘‘six greenhouse gases taken in
combination endanger both the public
health and the public welfare of current
and future generations.’’ 74 FR 66496.
The Administrator also found ‘‘that the
combined emissions of these
greenhouse gases from new motor
vehicles and new motor vehicle engines
contribute to the greenhouse gas air
pollution that endangers public health
and welfare under CAA section 202(a).’’
Id. The Endangerment Finding led
directly to promulgation of the Vehicle
Rule, also governed by CAA § 202(a), in
which EPA set standards for the
emission of GHGs for new motor
vehicles built for model years 2012–
2016. 75 FR 25324. The other two
actions, the Timing Decision and the
Tailoring Rule, governed by the PSD
and title V provisions in the CAA, were
issued to address the automatic
statutory triggering of these programs for
GHGs due to the establishment of the
first controls for GHGs under the Act.
More specifically, the Timing Decision
reiterated EPA’s interpretation that only
pollutants subject to regulation under
the Act can trigger major source status
for purposes of title V, and further
concluded that the earliest date GHG
would be subject to regulation for
purposes of title V would be January 2,
2011. The Tailoring Rule established a
series of steps by which PSD and title
V permit requirements for GHG could be
phased in, starting with the largest
sources of GHG emissions. 75 FR 31514.
In the proposed Tailoring Rule, EPA
proposed a major stationary source
threshold for purposes of title V of
25,000 tpy for GHG on a CO2e basis, for
at least a specified period. EPA
recognized that even so, approved State
title V programs would—until they were
revised—continue to use the statutory
threshold of 100 tpy for GHG on a mass
basis for purposes of the permitting
threshold, even though permits for
sources below the Tailoring Rule
threshold were not required under
Federal regulations and the States
would not have sufficient resources to
implement the title V program at the
statutory threshold for GHG-emitting
sources. This would result in the same
problems of overwhelming
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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administrative burdens and costs that
we designed the Tailoring Rule to
address. Accordingly, the proposed
Tailoring Rule included a proposal to
limit EPA’s previous approval of title V
programs to the extent those provisions
required permits for sources whose
emissions of GHG equal or exceed 100
tpy but are less than the permitting
threshold of the Tailoring Rule.
EPA relied for its authority for the
proposed limitations of approval on
CAA section 301(a), as it incorporates
the authority of an agency to reconsider
its actions, and in the Administrative
Procedure Act (APA) section 553. See
74 FR 55345. EPA indicated in the
proposal that it considered and decided
against issuing a notice of deficiency
under CAA section 502(i)(1), in part
because EPA did not anticipate that
program submissions would be
necessary following EPA’s action to
limit approvals. 74 FR 55345–55346.
In the final Tailoring Rule, EPA
adopted a 100,000 tpy CO2e permitting
threshold for title V permitting of GHG
emissions as of July 1, 2011, committed
the agency to take future steps
addressing smaller sources, and
excluded the smallest sources from title
V permitting for GHG emissions until at
least April 30, 2016.
The mechanism EPA chose in the
final rule to implement the 100,000 tpy
CO2e threshold for GHG emissions was
slightly different than what EPA had
proposed. In response to comments
from States, in place of providing a
definition in part 70 of ‘‘major source’’
with thresholds specific to GHG
sources, the final Tailoring Rule
amended the definition of ‘‘major
source’’ to reflect EPA’s long-standing
interpretation that applicability for
‘‘major stationary source’’ under CAA
sections 501(2)(B) and 302(j) and 40
CFR 70.2 and 71.2 is triggered by
sources of pollutants ‘‘subject to
regulation.’’ EPA then reflected the
permitting thresholds for GHGs within a
definition of the term ‘‘subject to
regulation’’ that was also added to parts
70 and 71.
Some States advised EPA that they
would likely be able to implement the
Tailoring Rule thresholds by
interpreting provisions in their
approved title V programs. A State’s
implementation of the Tailoring Rule in
this manner would obviate the need for
EPA to narrow its approval of the State’s
title V program. Thus, in the final
Tailoring Rule, EPA deferred making
any decision regarding whether to
narrow its approval of any title V
programs until after learning how States
intended to implement the Tailoring
Rule. Rather than taking final action on
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our proposal to limit approval for State
title V programs, EPA asked States to
submit information—in the form of
letters due within 60 days of publication
of the final Tailoring Rule (which we
refer to as the 60-day letters)—that
would help EPA determine what action
it would need to take to ensure that
GHG sources would be permitted
consistent with the final Tailoring Rule,
and specifically for which States it
would need to limit its approval of State
title V programs.
Almost all States submitted 60-day
letters. After reviewing the letters, some
States have indicated that they have
been able to interpret their existing
approved title V programs in a manner
consistent with the final Tailoring Rule.
Other permitting authorities indicated
that they needed regulatory or
legislative changes either to implement
title V permitting for GHG sources, or
else to apply the final Tailoring Rule
thresholds when they implement title V
permitting for GHG sources. Some
States indicated that some regulatory or
legislative changes to their title V
programs were necessary, but did not
clearly indicate which types of changes
were required. In some cases, the State’s
60-day letter addressed PSD permitting
but not title V permitting, or else did not
clearly distinguish between the two
programs in discussing how the State
intended to implement permitting of
GHG sources. Finally, a few States did
not submit 60-day letters.
Most States that need to take some
action indicated that they were actively
in the process of updating their title V
programs to be consistent with the final
Tailoring Rule. Indeed, many programs
were projected, as of the date of the 60day letter, to be revised to incorporate
the Tailoring Rule threshold at the State
level before January 2, 2011.
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IV. Final Rule
A. Narrowing of Title V Programs Under
Parts 70 and 52
EPA is taking final action to narrow
its approval of the title V program for
certain States. In the final Tailoring
Rule, EPA established 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 GHGs
will become subject to title V
requirements even where the sources
emit GHGs below the final Tailoring
Rule thresholds. Under the final
Tailoring Rule, GHGs emitted below the
Tailoring Rule thresholds are not treated
as a pollutant ‘‘subject to regulation’’
under the CAA (and thus, under the
final Tailoring Rule, a source emitting
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GHGs below the Tailoring Rule
thresholds would not be treated as a
major stationary source subject to title V
on account of its GHG emissions). Thus,
EPA is now narrowing its approval of
most approved title V programs so that
those title V programs are approved to
apply to GHG-emitting sources only if
those sources emit GHGs at or above the
final Tailoring Rule thresholds. EPA is
accomplishing this by reconsidering and
narrowing its previous approval of those
title V programs to the extent they apply
to GHG-emitting sources that emit
below the final Tailoring Rule
thresholds.
In the proposed Tailoring Rule, EPA
proposed to narrow its approval for all
50 States, as well as the District of
Columbia, Puerto Rico, and the U.S.
Virgin Islands.7 EPA now finalizes this
narrowing of approval for the States
with title V programs that will apply to
GHG emissions at below-Tailoring Rule
levels as of January 2, 2011, and for
States that EPA cannot clearly
determine do not fall in this category.
The States for whom EPA is narrowing
its approval of the title V program in
this action are: Alabama, California,
Colorado, District of Columbia, Georgia,
Hawaii, Illinois, Iowa, Kansas,
Louisiana, Maine, Maryland, Minnesota,
Mississippi, Missouri, Nebraska,
Nevada, New Hampshire, New York,
Ohio, Oklahoma, Pennsylvania, Rhode
Island, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Virgin
Islands, Virginia, Washington, West
Virginia, and Wisconsin. For all the
other States—States with no authority to
permit sources due to their status as
major sources of GHG or States which
apply the Tailoring Rule thresholds by
interpretation—EPA is not taking final
action on its proposal to narrow its
approval of the title V program at this
time because those States will not
subject GHG sources with emissions
below the Tailoring Rule thresholds to
the requirements of title V on January 2,
2011.
For most States, title V programs are
Federally-approved only under 40 CFR
part 70, and EPA need only amend
Appendix A to part 70 in order to
narrow its approval of the title V
program. However, in some cases, States
have chosen to submit their title V
programs as part of their State
7 40 CFR 70.2 defines ‘‘State’’ to include any nonFederal permitting authority, including local,
interstate and statewide permitting authorities, and
also including the District of Columbia, the
Commonwealth of Puerto Rico, and U.S. territories,
although ‘‘[w]here such meaning is clear from the
context, ‘State’ shall have its conventional
meaning.’’ This notice follows the same approach to
the use of the term ‘‘State.’’
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implementation plans (SIPs) and EPA
has approved those programs into the
SIP as codified in 40 CFR part 52. Three
States [Arizona (Pinal County Air
Quality Control District)], Minnesota,
and Wisconsin) whose title V programs
require narrowing have title V
applicability provisions that were
Federally approved under both part 70
and part 52. For these States, EPA is
amending its approval of the title V
program in both part 70 and part 52, in
order to ensure that the scope of the
approved title V program is consistent
in both parts.
B. Legal Basis
EPA is narrowing 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 approval is being
narrowed by this action will continue to
be fully approved under CAA section
502.
Among the minimum requirements
for a title V program are those for
‘‘adequate personnel and funding to
administer the program.’’ CAA section
502(b)(4). These requirements need to
be understood in context of Congress’
clear concern for ‘‘the need for
expeditious action by the permitting
authority on permit applications and
related matters.’’ CAA section 502(b)(8);
see also CAA sections 502(b)(6),
502(b)(7), & 503(c), 40 CFR 70.4(b)(8).
The flaw in the prior approved
programs is that certain program
provisions were phrased so broadly that
they could, under certain
circumstances, sweep in more sources
than the permitting authority could
process in an expeditious manner in
light of the resources that were available
or could be made available. Thus, EPA
is narrowing the scope of its approval of
those title V provisions to include, for
purposes of GHG emissions, only title V
permitting for sources emitting GHGs at
or above final Tailoring Rule thresholds.
EPA believes permitting at these
thresholds will require resources at a
level consistent with the descriptions of
adequate resources the State provided,
and EPA determined in the final
Tailoring Rule that States will have
adequate resources to issue operating
permits to sources emitting GHGs at this
level.
As noted above, for three States it is
necessary to revise the SIP in order to
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narrow the approved title V program.
The basis for narrowing the program is
the same under part 52 as under part 70.
Indeed, EPA does not believe it would
make sense to narrow its approval under
part 70 without also narrowing its
approval under part 52. Accordingly, for
these States EPA is not only exercising
its authority to reconsider its approval
of the title V program, but also its
authority to reconsider and to correct
errors in its approval of a SIP.
EPA is narrowing its approval of the
title V programs for all States that have
indicated that they have authority under
their title V programs to issue permits
to sources of 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
did not clearly indicate to EPA whether
they are 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 issue permits to sources due
to their emissions of 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 did not provide a 60-day
letter with sufficient information to
determine the status of their title V
permit programs in relation to GHG
sources. EPA believes it is appropriate
to narrow the approved title V program
for all of these States. In the case of
programs that have made State-level
changes but have not yet received EPA
approval for those changes, this
approach provides an efficient means of
ensuring that at no time is there a
requirement under a Federally-approved
program for sources below the final
Tailoring Rule threshold to obtain a
permit. For this reason, as a
precautionary matter, EPA is narrowing
approval for States that did not inform
us that they can 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 There
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
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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 narrowing its approval of programs
‘‘to the extent’’ they require sources of
GHG in excess of the threshold to apply
for title V permits as major sources of
GHG. Thus, if indeed a State’s program
does not require permits for these
sources at all, there are no consequences
to sources or the permitting authority
from EPA’s decision to narrow the scope
of the State’s approval.9 On the other
hand, if EPA were to refrain from
narrowing its approval, and then learn
that the program indeed does require
sources that emit or have the potential
to emit 100 tpy or more of GHGs on a
mass basis to apply for title V permits,
there would be significant adverse
consequences for the permitting
authority and sources, as described
previously in this final rule and in the
final Tailoring Rule. Accordingly, EPA
is refraining from narrowing the title V
programs for States that cannot
implement the Tailoring Rule
thresholds only if EPA is certain that
those State programs do not require
permits for sources due to their
emissions of GHG.
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.
1. Title V Applicability
Each of the States subject to this rule
has an approved title V operating
permits program and has not clearly
indicated to EPA that it has the ability
to permit sources of GHG consistent
with the thresholds in the final
Tailoring Rule. In most of these States,
until after such time as a permit program becomes
applicable to them. See CAA section 503(a). EPA
intends to work with States, through program
revisions, notices of deficiency and/or application
of the Federal title V program, in order to assure
that major sources of GHGs in all States are subject
to title V programs.
9 Likewise, if a State did not provide sufficient
information to EPA in a 60-day letter and it turned
out that the State could apply the permitting
thresholds of the final Tailoring Rule under its
existing approved title V program, there would be
no harm to the permitting authority or sources as
a result of EPA’s decision to narrow its approval
consistent with the final Tailoring Rule thresholds.
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82259
the approved title V program contains
applicability provisions that are written
broadly to include all pollutants subject
to regulation under the CAA for the
purposes of determining whether a
source is a major source covered by the
title V operating permits program. As a
result, as soon as EPA promulgates a
rule regulating a new pollutant under
any provision of the CAA, these title V
programs expand to cover additional
sources that are major for that new
pollutant. Depending on the pollutant,
and the number and size of sources that
emit it, these applicability provisions
could result in a required significant
and rapid expansion of the title V
program. This is precisely what is
happening at present, now that GHG
will become subject to regulation under
CAA section 202(a) and will become
subject to PSD when emitted from
certain stationary sources starting on
January 2, 2011.
Importantly, the States affected by
this action do not interpret their
applicability provisions 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 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 address new
pollutants.
This sudden expansion of permitting
responsibilities is precisely what is now
happening in the case of GHGs. As
described in the Timing Decision and
final Tailoring Rule, GHG will become
subject to regulation on January 2, 2011.
EPA defined GHGs as the group of six
air pollutants made up of carbon
dioxide, methane, nitrous oxide, sulfur
hexafluoride, hydrofluorocarbons, and
perfluorocarbons. 75 FR 31514, 31519
(June 3, 2010) (Tailoring Rule
discussion); 75 FR 25324 (May 7, 2010)
(LDVR). Absent the limits of the final
Tailoring Rule, sources that emit or have
the potential to emit at least 100 tpy of
GHGs would be potentially subject to
title V permitting as of that date. EPA
does not have information showing that
the approved title V programs in States
subject to this rule can interpret their
programs more narrowly, to apply to
only 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 programs more narrowly and, as
a result, are not subject to this action.
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The scale of the administrative
program needed to effectively permit all
sources emitting GHGs at the 100 tpy
level has highlighted the unconstrained
nature of the title V program’s
applicability provisions. EPA has
recognized that immediately subjecting
major sources of GHGs at the 100 tpy
level to title V requirements is
administratively unmanageable and
creates absurd results that were not
intended by Congress when it enacted
title V. Thus, in the final Tailoring Rule,
EPA implemented limits on when GHGs
become ‘‘subject to regulation’’ for
purposes of title V, such that emissions
of GHGs will not trigger major source
status, and thus will not trigger title V
permit requirements, unless the source
emits both 100 tpy of GHG on a mass
basis and 100,000 tpy CO2e of GHG as
of July 1, 2011 or later. EPA included
this limit in its regulations, and through
this limit greatly reduced the extent of
title V applicability. This limit was set
at a level at which EPA determined
States would have the resources to
implement a title V program for GHG
emissions. By contrast, the approved
State programs that are subject to this
rule do not incorporate the thresholds of
the final Tailoring Rule. As a result,
many or all of these State programs
implement title V applicability for GHG
sources more broadly—indeed, much
more broadly, to far more sources and
to much smaller sources—than EPA’s
regulations do. This is problematic to
the extent it may interfere with the
State’s ability to meet minimum
requirements for title V programs, as
discussed in the following section.
2. Minimum Requirements for
Approved State Title V Programs
Each of the States subject to this rule
submitted a title V program for
approval. In order to be approved by
EPA, the State program was required to
meet certain minimum requirements
laid out in the CAA and in 40 CFR part
70. One of these requirements,
contained in 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(b)(6) through (b)(8).
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.
Therefore, at the time that the State
submitted the title V program for EPA
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approval, the title V program was
required to include assurances that
adequate resources would be available
to process title V permits in an
expeditious manner, according to the
requirements of the CAA and part 70.
The title V programs affected by this
action, however, will not be able to meet
these minimum requirements for a title
V program as a result of their
applicability to GHG-emitting sources.
In the proposed and final Tailoring
Rule, EPA stated that on a nationwide
basis, applying title V to GHG-emitting
sources at the 100 tpy level will result
in far greater numbers of sources (over
6 million) requiring permitting than
currently do (about 15,000), and the
great majority of these additional
sources would be smaller than the
sources currently subject to title V. EPA
added that the administrative burdens
associated with permitting these large
numbers of small sources would
overwhelm the affected permitting
authorities. As a result, for each State,
EPA proposed to rescind approval of the
part of the title V program that applies
title V to GHG-emitting sources below
the Tailoring Rule thresholds. During
the comment period on this proposal,
no authority contested this
understanding of the facts, none stated
that it could administer title V at the
100 tpy levels, and none contested the
proposal on grounds that it has adequate
resources. In the final Tailoring Rule,
EPA refined, on the basis of comments,
the precise extent of the administrative
burden, but confirmed that the burden
was overwhelming and that States
lacked adequate resources. As noted
above, in the final Tailoring Rule, EPA
requested that States submit letters
within 60 days of publication of the rule
describing how they intended to
implement title V for 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 is clear that none of the States
had included in the title V program
submitted for approval an adequate plan
or strategy to assure resources to
administer the title V program for their
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 (consistent with
Federal law) to match their resources
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must be narrowed to include such
constraints.10
3. Basis for Reconsideration and
Narrowing of Approval
Based on the previous analysis, it is
clear that EPA’s approval of the title V
programs subject to this action was
flawed. They each are structured in a
manner that may impose a title V
permitting requirement on sources of
pollutants newly subject to regulation
under the Act without limitations, and
yet they do not have a plan for acquiring
resources to adequately permit large
new categories of sources. As explained
previously, the combination of these
title V programs’ broader applicability
to additional stationary sources that
emit pollutants newly subject to
regulation, and the failure of the
approved title V program to plan for
adequate resources for that broader
applicability—and to ensure that
permits could be issued consistent with
the requirements for expeditious
processing of permit applications—is a
flaw in these programs. In short, the title
V program applicability provisions and
the assurances provided in the State
program submission are mismatched
and therefore EPA needs to reconsider
its approval of these programs. As
discussed previously, EPA’s recently
promulgated GHG rules have
highlighted this flaw.
It may be true that at the time the
affected States submitted their State
programs for approval, the precise
course of events that have recently
transpired concerning GHGs and that
have exposed the mismatch between
title V applicability and State
assurances may have been difficult to
foresee. Even so, it could have been
generally foreseen that the breadth of
the affected State program applicability
provisions, combined with the
programs’ limited State assurances, was
at least a potential mismatch that could
eventually lead to title V applicability
greatly outstripping permitting authority
resources. EPA does not believe it is
required to wait for that to occur, and
then issue a Notice of Deficiency (NOD),
to address the issue. Rather, this is a
flaw in the title V programs that
provides a basis for EPA to reconsider
its approval.
In the proposed Tailoring Rule, EPA
proposed to narrow its approval for all
approved State programs. EPA now
finalizes this narrowing of approval for
only the States which have indicated
10 As stated earlier, States included in this rule
are in this situation, or else EPA currently lacks
sufficient information to determine that they are not
in this situation.
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that their title V programs will apply to
sources that emit or have the potential
to emit at least 100 tpy of GHG as of
January 2, 2011, or for which EPA has
not been able to clearly establish
whether or not the program will apply
to such sources. The States for which
EPA is narrowing its approval of the
approved State title V program in this
action include: Alabama, California,
Colorado, District of Columbia, Georgia,
Hawaii, Illinois, Iowa, Kansas,
Louisiana, Maine, Maryland, Minnesota,
Mississippi, Missouri, Nebraska,
Nevada, New Hampshire, New York,
Ohio, Oklahoma, Pennsylvania, Rhode
Island, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Virgin
Islands, Virginia, Washington, West
Virginia, and Wisconsin. 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
extent they require permits for such
sources where the source emits or has
the potential to emit at least 100,000 tpy
CO2e, as well as 100 tpy on a mass basis,
as of July 1, 2011.’’ 11 EPA is also
finalizing very similar language in the
SIPs of Arizona, Minnesota and
Wisconsin in order to ensure that the
federally approved title V program in
each of these States is appropriately
narrowed under part 52 as well as part
70. The language being used for this
final narrowing rule reflects minor
changes from the language proposed in
the Tailoring Rule in order to clarify and
reflect the decisions about permitting
thresholds reached in the final Tailoring
Rule.
EPA notes that the following States
have stated either that they can permit
major sources of GHG in their approved
title V program consistent with the
Tailoring Rule thresholds or that they
have no authority under their current
approved title V program to permit
sources due to their status as major
sources of GHG: Alaska, Arkansas,
Arizona, Connecticut, Delaware,
Florida, Idaho, Indiana, Kentucky,
Massachusetts, Michigan, Montana,
New Jersey, New Mexico, North
Carolina, North Dakota, Oregon, Puerto
Rico, Texas, and Wyoming.
Accordingly, it is not necessary at
present to narrow the title V program
11 EPA notes that where an approved State
program includes multiple permitting authorities,
EPA is narrowing the approved State program if any
permitting authority requires narrowing.
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approval for these States. As noted
previously, EPA intends to work with
these States as necessary, through
program revisions, notices of deficiency
and/or application of the Federal title V
program, to assure that major sources of
GHGs in all States are subject to title V
programs, but only at the Tailoring Rule
thresholds.
C. Authority for EPA Action
EPA has determined that this flaw in
the approved State programs warrants
reconsideration of the prior program
approvals, and narrowing of those
approvals. EPA believes it may
reconsider its prior actions under
authority inherent in CAA section 502,
with further support from CAA section
301(a), and the reconsideration
mechanisms provided under CAA
section 307(b) and APA section
553(e).12 In addition, with respect to the
two SIP revisions, EPA has authority to
correct errors in SIP approvals, as well
as to reconsider them.
In approving the State programs
under CAA 502(d), EPA retained
authority to revise that action. The
courts have found that an administrative
agency has the inherent authority to
reconsider its decisions, unless
Congress specifically proscribes the
agency’s discretion to do so. See, e.g.,
Gun South, Inc. v. Brady, 877 F.2d 858,
862 (11th Cir. 1989) (holding that
agencies have implied authority to
reconsider and rectify errors even
though the applicable statute and
regulations do not provide expressly for
such reconsideration); Macktal v. Chao,
286 F.3d 822, 826–26 (5th Cir. 2002);
Trujillo v. General Electric Co., 621 F.2d
1084, 1086 (10th Cir. 1980)
(‘‘Administrative agencies have an
inherent authority to reconsider their
own decisions, since the power to
decide in the first instance carries with
it the power to reconsider’’); see also
New Jersey v. EPA, 517 F.3d 574 (DC
Cir. 2008) (holding that an agency
normally can change its position and
reverse a prior decision but that
Congress limited EPA’s ability to
remove sources from the list of
hazardous air pollutant source
categories, once listed, by requiring EPA
to follow the specific delisting process
at CAA section 112(c)(9)).13
12 See 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).
13 For additional case law, see Belville Mining Co.
V. United States, 999 F.2d 989, 997 (6th Cir. 1993);
Dun & Bradstreet Corp. v. United States Postal
Service, 946 F.2d 189, 193 (2d Cir. 1991); Iowa
Power & Light Co. v. United States, 712 F.2d 1292
(8th Cir. 1983).
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Section 301(a) of the CAA, in
conjunction with CAA section 502 and
the case law just described, provides
statutory authority for EPA’s
reconsideration action in this
rulemaking. Section 301(a) of the CAA
authorizes EPA ‘‘to prescribe such
regulations as are necessary to carry out
[EPA’s] functions’’ under the CAA.
Reconsidering prior rulemakings, when
necessary, is part of ‘‘[EPA’s] functions’’
under the CAA. Cf. CAA section 307(b).
Furthermore, the case law previously
cited establishes that a grant of authority
to approve State title V programs carries
with it the inherent right to reconsider
that approval, particularly since
Congress has not prescribed any specific
alternative mechanism for such
reconsideration. Thus, CAA sections
502 and 301(a) confer authority upon
EPA to undertake this rulemaking.
EPA finds further support for its
authority to narrow its approvals in
APA section 553(e), which requires EPA
to give interested persons ‘‘the right to
petition for the issuance, amendment, or
repeal of a rule,’’ and CAA section
307(b)(1), which expressly contemplates
that persons may file a petition for
reconsideration under certain
circumstances (at the same time that a
rule is under judicial review). The right
to petition to reconsider, amend, or
repeal presumes that an agency has the
discretion to grant such a petition. If
EPA has the authority to grant a petition
from another person to reconsider,
amend or repeal a rule if justified under
the CAA, then it follows that EPA
should be considered as having
authority to reconsider, amend or repeal
a rule when it determines such an
action is justified under the CAA, even
without a petition from another person.
EPA recently used its authority to
reconsider prior actions and limit its
prior approval of a SIP in connection
with California conformity SIPs. See,
e.g., 68 FR 15720, 15723 (discussing
prior action taken to limit approvals); 67
FR 69139 (taking final action to amend
prior approvals to limit their duration);
67 FR 46618 (proposing to amend prior
approvals to limit their duration, based
on CAA sections 110(k) and 301(a)).
EPA had previously approved SIPs with
emissions budgets based on a mobile
source model that was current at the
time of EPA’s approval. Later, EPA
updated the mobile source model. But,
even though the model had been
updated, emissions budgets would
continue to be based on the older,
previously approved model in the SIPs,
rather than the updated model. To
rectify this problem, EPA conducted a
rulemaking that revised the previous
SIP approvals so that the approvals of
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the emissions budgets would expire
early, when the new ones were
submitted by States and found adequate,
rather than when a SIP revision was
approved. This helped California more
quickly adjust its regulations to
incorporate the newer model.
EPA notes that it considered but
decided not to use the NOD process,
which is explicitly provided for in CAA
section 502(i), to address the flaw
presented by these program approvals.
There are several reasons why EPA
determined that it was neither necessary
nor appropriate to use the NOD process
to address this issue in this rule.
The CAA provides that the NOD is to
be used ‘‘whenever the Administrator
makes a determination that a permitting
authority is not adequately
administering or enforcing a program’’
and provides that States must correct
the deficiency within 18 months. CAA
section 502(i).
Here, the problem is not with the way
the State is administering or enforcing
its approved State title V program.
States are issuing permits, and
modifications, and enforcing the various
requirements of title V as provided for
under the Act. The flaw is the mismatch
between the breadth of the applicability
provisions and the limited State
assurances of adequate resources, in
light of the possibility that a very large
number of new major sources could
become subject to title V. This flaw does
not relate at all to the current
administration and enforcement of the
title V program, but rather to the
overbroad nature of the underlying
structure and scope of the title V
program. The distinction is further
underlined by the fact that section
502(i) contemplates that States would
need to take corrective action to address
the notice of deficiency. However, in the
case of the flaw addressed here, EPA
believes that no further State action will
be necessary to address this mismatch
once the approved title V program has
been narrowed by this action.14
EPA views the NOD as specific
authority for addressing specific
circumstances, but concludes that it is
not the sole means of changing an
approved State program, and it is not
the appropriate means in these
circumstances. EPA believes nothing in
section 502(i) displaces its authority to
14 As noted in the Tailoring Rule, there may be
good reasons for States to update their State laws
and regulations to reflect the narrowing and the
thresholds of the Tailoring Rule, but the States will
still have fully approved programs, and once the
Federally-approved program is narrowed, the
obligation under Federally approved programs to
apply for a permit will no longer exist for sources
below the Tailoring Rule thresholds.
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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.
With respect to the two SIPs being
revised, EPA is also exercising its
authority to correct errors in SIPs,
pursuant to CAA section 110(k)(6), as
well as its authority to reconsider its
actions. Under CAA section 110(k)(6),
once EPA determines that its action in
approving the PSD SIPs was in error,
EPA has the authority to correct the
error in an ‘‘appropriate’’ manner, and
through the same process as the original
approval, but without requiring any
further State submission.
EPA’s narrowing of its approval of the
title V program corrects an error by
addressing the flaw previously
discussed, that the approved program
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. EPA believes
correcting these SIPs is a reasonable
exercise of its authority for the reasons
stated herein and for the reasons stated
in the PSD Narrowing Rule (‘‘Limitation
of Approval of Prevention of Significant
Deterioration Provisions Concerning
Greenhouse Gas Emitting-Sources in
State Implementation Plans’’).
V. Comments and Responses
Comments: Several industry
commenters (4019, 4118, 4691, 5083,
5140, 5181, 5278, 5317) and one State
commenter (4019) generally disagreed
with our proposal to narrow our
approval of previously-approved title V
programs. Specific arguments against
the proposed approach include the
following:
• The EPA has overstated its
authority under CAA section 301(a).
The DC Circuit has observed that
section 301(a)(1) ‘‘does not provide the
Administrator with carte blanche
authority to promulgate any rules, on
any matter 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;
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it plainly does not permit agencies to
disregard procedural requirements—
whether under the APA or under
organic statutes such as the CAA—that
agencies must follow in effecting any
such revisions. (5317)
An industry commenter (4298)
supports EPA’s efforts to limit or
conform its prior approvals through
CAA sections 301(a)(1) and 110(k)(6)
with respect to applicability thresholds.
However, the commenter believes EPA
should take affirmative steps to ensure
that States immediately either revise
their regulations to raise existing lower
thresholds or demonstrate that they
have adequate resources and funding to
manage their programs utilizing those
existing lower thresholds.
The same commenter states that EPA
should issue a NOD, under CAA section
502(i)(1), to all States concurrent with
the final Tailoring Rule, unless a State
can demonstrate that it has commenced
and is committed to finalizing any
changes necessary under State law to
make it consistent with the Tailoring
Rule (4298). The commenter adds that
EPA should not finalize any action that
would trigger GHG permitting until each
State program has been amended.
Another commenter (5306) suggests
EPA establish an expeditious deadline
for States to submit corrective program
revisions by adopting model guidelines
to help inform State rulemaking, and
EPA should complete this process by
the end of 2010. The commenter
explains that EPA can promptly issue a
notice of deficiency and call for
expeditious corrective action. See 42
U.S.C. 7661a(i). (5306).
Several comments state that there is
no provision in title V, similar to error
correction provisions for SIPs, for EPA
to use to correct an error in its original
approval of a title V program (5140,
5181, 5278).
Response: As discussed previously,
EPA believes that it has authority under
sections 502 and 301 to reconsider its
approvals of State title V programs and
under section 110 to reconsider SIP
approvals and correct errors in the SIP.
Section 502(d) explicitly requires EPA
to approve or disapprove State title V
programs, and EPA believes under the
case law cited previously, this authority
inherently includes the authority for
EPA to 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
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action is limited solely to situations
where a person has filed a petition.15
While Congress ‘‘undoubtedly can
limit an agency’s discretion to reverse
itself,’’ and ‘‘EPA may not construe a
statute in a way that completely
nullifies textually applicable provisions
meant to limit its discretion,’’ New
Jersey v. EPA, 517 F.3d 574, 583 (DC
Cir. 2008) (quotation omitted), there is
no evidence that Congress limited EPA’s
discretion to reconsider its decisions
with respect to title V program
approvals, or that EPA’s approach
would nullify any provisions intended
to limit its discretion. The only
provision that commenters have
identified as potentially limiting EPA’s
discretion is section 502(i), but that
section is explicitly directed to the
administration and enforcement of an
approved program. Where there are
problems with how an approved
program is being implemented, the
notice of deficiency process provides an
avenue for working with States to fix
those problems. Where, however, EPA
realizes (as here) that its approval of a
program was based on a structural flaw
in the program—that is, a mismatch
between the scope of sources potentially
covered and the resources to cover
them—that may cause future problems
with administrability, there is no reason
to believe that Congress intended to
limit EPA’s ability to reconsider its
decision.
As noted previously, the distinction
between current deficiencies in the
administration and enforcement of the
title V program, as compared to the
overbroad nature of the underlying
structure and scope of the title V
program, is further underlined by the
fact that section 502(i) contemplates that
States would need to take corrective
action to address the notice of
deficiency. However, in the case of the
flaw addressed here, EPA believes that
no further State action will be necessary
once the approved title V program has
been narrowed by this action.
The conclusion that Congress did not
intend to limit EPA’s ability to
reconsider its decisions is further
supported by the fact that (unlike the
situation the DC Circuit considered in
New Jersey v. EPA, discussed
previously) Congress did not establish
any specific substantive limits on EPA’s
discretion in issuing a notice of
deficiency. Rather, EPA is to issue a
notice ‘‘whenever the Administrator
makes a determination that a permitting
authority is not adequately
administering and enforcing a program
* * * ’’ Section 502(i)(1). Thus, EPA’s
decision to reconsider its approval in no
way nullifies any provisions meant to
limit its discretion.
Finally, the fact that there is no
provision similar to section 110(k)(6) for
title V provides no basis for concluding
that Congress intended to limit EPA’s
ability to reconsider its approvals.
Section 110(k)(6) was enacted in
response to a court decision, Concerned
Citizens of Bridesburg v. EPA, 836 F.2d
777 (2d Cir. 1987), where the court
narrowly construed EPA’s authority to
correct errors in SIP approvals as
limited to typographical or similar
errors. In response, Congress added
section 110(k)(6) as part of the 1990
amendments to make clear that EPA has
authority to correct any errors. No court
has ever suggested that EPA lacks
authority to reconsider its decisions to
approve title V programs, and under the
case law the lack of an explicit
mechanism to correct errors in title V
program approvals is entirely consistent
with EPA’s view that such authority is
inherent in CAA section 502, as
discussed previously.
EPA believes this case law also
supports its authority to reconsider the
approvals into part 52 of two title V
programs which are being narrowed.
Furthermore, EPA believes we have
authority not only to reconsider these
SIP approvals, but also to narrow these
SIPs using our error correction authority
under CAA section 110(k)(6). EPA
disagrees with commenters who believe
that this provision may only be used for
technical or clerical errors. EPA’s view
is that Section 110(k)(6) of the CAA is
available to correct any error EPA made
in approving a SIP. The text of CAA
section 110(k)(6) applies the provision
broadly to any mistake, and does not
limit the provision’s applicability to
only technical or clerical errors.
Congress’s passage of CAA section
110(k)(6) in 1990 in fact indicated
Congress’s intent to reinforce EPA’s
broad authority to unilaterally correct
any errors in SIP approvals, coming as
it did after the Third Circuit adopted a
narrow interpretation of error correction
authority in Concerned Citizens of
Bridesburg v. U.S. EPA, 836 F.2d 777
(1987).16
EPA notes that the question of
whether EPA should have postponed
promulgation of the Vehicle Rule until
each State title V program had been
15 We further note that it is not clear the comment
challenging the citation of section 553(e) in the
absence of a petition was intended to reference title
V.
16 For further discussion of SIP-related issues, see
the PSD Narrowing Rule, particularly section V.A
(‘‘Comments Regarding the Legal Mechanism for the
Current Action’’).
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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 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
25402. EPA explained further that any
additional delay in setting standards
would frustrate implementation of the
national program for regulation of motor
vehicles, resulting in substantial
prejudice to vehicle manufacturers and
consumers. 75 FR 25326. EPA also
explained that consideration of indirect
stationary source costs has no relevance
to the issue of the appropriate level at
which to set vehicle emission standards.
Vehicle Rule RTC 5–456.
As noted previously, once the
Federally-approved program is
narrowed, the obligation under
Federally approved programs to apply
for a permit will no longer exist for
sources below the Tailoring Rule
thresholds. Further, EPA notes that the
Agency has no authority to amend State
law, but the majority of States have
informed EPA that they are revising
their State programs to incorporate the
thresholds in the final Tailoring Rule for
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 spring of 2011,
which should be timely for State law
purposes in light of 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 Federallyapproved program is narrowed (in this
action), the obligation under Federally
approved programs to apply for a permit
will no longer exist for sources below
the Tailoring Rule thresholds. EPA
reiterates further that this approach is
preferable to the NOD process for States
subject to this action and that it is not
necessary to issue notices of deficiency
as part of this rulemaking.
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VI. Effective Date
This rule is being issued under CAA
§ 307(d)(1)(V). CAA section 307(d)
specifies that rules issued under its
provisions are not subject to APA
section 553. Thus, the 30-day delay in
effective date from the date of signature
required under the APA does not apply.
In addition, APA section 553(d)
provides exceptions to this requirement
for good cause and for any action that
grants or recognizes an exemption or
relieves a restriction. The effect of this
rule is to relieve many small sources
(and permitting authorities) from
permitting obligations under title V and
to address the potential for permitting
authorities to be overwhelmed by
processing permits not required under
40 CFR part 70. Therefore, EPA finds
that there is good cause for an
immediate effective date, and that an
immediate effective date is consistent
with the purposes underlying APA
section 553(d). In addition, since this is
not a major rule under the
Congressional Review Act (CRA), the
60-day delay in effective date required
for major rules under the CRA does not
apply. This rule is thus effective upon
publication.
VII. Statutory and Executive Order
Reviews
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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 by sources and permitting
authorities relative to the costs that
would be incurred if EPA did not revise
this rule. In the final Tailoring Rule,
EPA stated that based on its GHG
threshold data analysis, it estimated that
over 6 million new facilities nationally
would be required to obtain operating
permits based on applying an emissions
threshold for major source status of 100
tpy of GHG emissions on a mass basis.
This was compared with the
approximately 15,000 title V permits
that have been issued to date. Thus,
without the final Tailoring Rule, the
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administrative burden for permitting
GHG emissions would increase 400fold, an unmanageable increase. The
current action takes further steps to
implement the burden-reduction
implemented by the final Tailoring Rule
by raising the GHG thresholds in the
approvals of the title V programs of the
identified State and local agencies from
100 tpy to the higher thresholds
required under the final Tailoring Rule
(100,000 tpy CO2e under title V during
step 2 of the final Tailoring Rule
implementation). However, OMB has
previously approved the information
collection requirements contained in the
existing regulations under 40 CFR part
70 under the provisions of the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB
control number 2060–0336. The OMB
control numbers for EPA’s regulations
in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of this final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
In making such determinations, the
impact of concern is any significant
adverse economic impact on small
entities (5 U.S.C. 603 and 604). This rule
will relieve Federal regulatory burdens
for affected small entities, including
small businesses that are subject to title
V permitting in the affected States by
raising the GHG applicability thresholds
in those States to the levels specified in
the final Tailoring Rule, which in turn,
will result that fewer sources being
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subject to title V permitting in those
States. Thus, the program changes
provided by this rule will not result in
a significant economic impact on a
substantial number of small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or Tribal
governments or the private sector. The
action is merely an administrative
action designed to ensure consistency
with the requirements of the final
Tailoring Rule. This action does not
require any State or local permitting
agency or private entity to take on any
new regulatory burdens; any burden
resulting from changing State or local
GHG thresholds was already accounted
for in the final Tailoring Rule, which
already imposes the higher GHG
thresholds addressed by this action.
Thus, this action is not subject to the
requirements of sections 202 or 205 of
the UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. This
rule is expected to result in cost savings
and administrative burden reduction for
affected permitting agencies and sources
in the affect States, including
governments.
E. Executive Order 13132—Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This action
merely seeks to reduce the number of
sources subject to title V permitting in
the affected States by raising the GHG
thresholds in those States to the levels
specified in the final Tailoring Rule,
resulting in a significant reduction in
burdens for affected State and local
agencies. Thus, Executive Order 13132
does not apply to this action. In the
spirit of Executive Order 13132, and
consistent with EPA policy to promote
communications between EPA and State
and local governments, EPA specifically
solicited comment on the proposed
action from State and local officials.
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F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
Subject to Executive Order 13175 (65
FR 67249, November 9, 2000) EPA may
not issue a regulation that has Tribal
implications, that imposes substantial
direct compliance costs, and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by Tribal governments, or
EPA consults with Tribal officials early
in the process of developing the
proposed regulation and develops a
Tribal summary impact statement.
EPA has concluded that this action
may have Tribal implications. However,
it will neither impose substantial direct
compliance costs on Tribal government,
nor preempt Tribal law. There are no
Tribal authorities with an EPAapproved part 70 title V permitting
program to date;17 however, this may
change in the future.
EPA consulted with Tribal officials
early in the process of developing the
final Tailoring Rule, which the current
rule helps to implement, to allow them
to have meaningful and timely input
into its development. EPA specifically
solicited comments from Tribal officials
on the proposal for this approach to
narrowing title V program approvals,
which was part of the GHG Tailoring
Rule proposal (74 FR 55292, October 27,
2009). EPA consulted with Tribal
officials early in the regulatory
development process for the GHG
Tailoring Rule, including by publishing
an Advanced Notice of Proposed
Rulemaking (73 FR 44354, July 30,
2009), where we received several
comments from Tribal officials which
were considered in the proposed and
final rules.
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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.
17 One Tribe is operating a title V permit program
pursuant to a delegation under part 71.
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H. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant energy
action’’ as defined in Executive Order
13211 (66 FR 28355, May 22, 2001)
because it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Further,
we have concluded that this rule is not
likely to have any adverse energy effects
because it does not create any new
requirements for sources in the energy
supply, distribution, or use sectors.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This 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.
EPA has concluded that it is not
practicable to determine whether there
would be disproportionately high and
adverse human health or environmental
effects on minority and/or low income
populations from this rule. This rule is
necessary in order to allow for the
continued implementation of permitting
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requirements established in the Clean
Air Act. Specifically, without this rule,
the affected States’ CAA title V
permitting programs would become
overwhelmed and unmanageable by the
untenable number of GHG sources that
would become newly subject to them.
This would result in severe impairment
of the functioning of these programs
with potentially adverse human health
and environmental effects nationwide.
Under this rule and the findings under
the final Tailoring Rule, EPA is ensuring
that the affected States’ CAA permitting
programs continue to operate by
limiting their applicability to the
maximum number of sources the
programs can possibly handle. This
approach is consistent with
congressional intent as it phases in
applicability, starting with the largest
sources initially, and then other sources
over time, so as not to overwhelm State
permitting programs. By doing so, this
rule allows for the maximum degree of
environmental protection possible while
providing regulatory relief for the
unmanageable burden that would
otherwise exist. Therefore, we believe it
is not practicable to identify and
address disproportionately high and
adverse human health or environmental
effects on minority populations and low
income populations in the United States
under this final rule, though we do
believe that this rule will ensure that
States can continue to issue title V
permits to significant sources of air
pollution.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective December 30, 2010.
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 February 28, 2011.
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Any such judicial review is limited to
only those objections that are raised
with reasonable specificity in timely
comments. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this rule for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. Under section 307(b)(2) of the
Act, the requirements of this final action
may not be challenged later in civil or
criminal proceedings brought by us to
enforce these requirements. Pursuant to
section 307(d)(1)(V) of the Act, the
Administrator determines that this
action is subject to the provisions of
section 307(d). Section 307(d)(1)(V)
provides that the provisions of section
307(d) apply to ‘‘such other actions as
the Administrator may determine.’’ This
action finalizes some, but not all,
elements of a previous proposed
action—the Prevention of Significant
Deterioration and Title V Greenhouse
Gas Tailoring Rule Proposed Rule (74
FR 55292, October 27, 2009).
Section 307(b)(1) of the CAA indicates
which Federal Courts of Appeal have
jurisdiction for petitions of review of
final actions by EPA. This section
provides, in part, that petitions for
review must be filed in the Court of
Appeals for the District of 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 most
approved title V programs across the
country. At the core of this rulemaking
is EPA’s interpretation of its authority to
reconsider its prior approvals under the
Clean Air Act, and its application of that
interpretation to areas across the
country. EPA is finalizing this rule with
a goal of ensuring that no State will
become unable to implement national
Clean Air Act requirements, including
those for permitting sources of
greenhouse gases. This action is being
taken on the basis of a single
administrative record. The factual
questions in this rule are not unique to
particular geographical areas, but are
asked uniformly of all States. The large
number of States, spanning much of the
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country, being affected, the common
core of knowledge and analysis
involved in formulating the rule, and
the common legal interpretation
advanced of section 502 and other
sections of the Clean Air Act, all
combine to make this a nationally
applicable rule.
For the same reasons, the
Administrator also is finding that this
action is based on determinations 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 numerous
judicial circuits since most approved
title V programs across the country are
affected by this action. EPA also applied
a consistent analytical approach broadly
across the country to determine which
action to take, and for which States.
EPA used a nationally applicable,
uniform legal interpretation of section
502 and other sections of the Clean Air
Act and of EPA’s general authority in
conducting this analysis. In these
circumstances under section 307(b)(1),
the Administrator is finding the rule to
be based on determinations of
‘‘nationwide scope or effect’’ and for
jurisdiction to be in the DC Circuit.
Thus, any petitions for review of the
narrowing of title V program approvals
must be filed in the Court of Appeals for
the District of Columbia Circuit by
February 28, 2011.
40 CFR Part 70
Environmental protection,
Administrative practice and procedure,
Air pollution control, Carbon dioxide,
Carbon dioxide equivalents, Greenhouse
gases, Hydrofluorocarbons,
Intergovernmental relations, Methane,
Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping
requirements, Sulfur hexafluoride.
Statutory Authority
*
The statutory authority for this action
is provided by sections 110, 301 and
502 of the CAA as amended (42 U.S.C.
7410, 7601 and 7661a). This action is
also subject to section 307(d) of the CAA
(42 U.S.C. 7407(d)).
List of Subjects
40 CFR Part 52
Administrative practice and
procedure, Air pollution control, Carbon
dioxide, Carbon dioxide equivalents,
Environmental protection, Greenhouse
gases, Hydrofluorocarbons,
Intergovernmental relations, Methane,
Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping
requirements, Sulfur hexafluoride.
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Dated: December 23, 2010.
Lisa P. Jackson,
Administrator.
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 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
2. Section 52.151 is added to subpart
D to read as follows:
■
§ 52.151
Operating permits.
Insofar as the permitting threshold
provisions in the Pinal County Code of
Regulations for the Pinal County Air
Quality Control District concern the
treatment of sources of greenhouse gas
emissions as major sources for purposes
of title V operating permits, 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
CO2 equivalent emissions, as well as
100 tpy on a mass basis, as of July 1,
2011.
3. Section 52.1233 is revised by
redesignating the existing text as
paragraph (a) and adding a new
paragraph (b) to read as follows:
■
§ 52.1233
Operating permits.
*
*
*
*
(b) For any permitting program
located in the State, insofar as the
permitting threshold provisions in
Chapter 7007 rules concern the
treatment of sources of greenhouse gas
emissions as major sources for purposes
of title V operating permits, 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
CO2 equivalent emissions, as well as
100 tpy on a mass basis, as of July 1,
2011.
■ 4. Section 52.2590 is added to subpart
YY to read as follows:
§ 52.2590
Operating permits.
For any permitting program located in
the State, insofar as the permitting
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threshold provisions in Chapter NR 407
of the Wisconsin Administrative Code
concern the treatment of sources of
greenhouse gas emissions as major
sources for purposes of title V operating
permits, 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 CO2 equivalent emissions,
as well as 100 tpy on a mass basis, as
of July 1, 2011.
PART 70—[AMENDED]
5. The authority citation for part 70
continues to read as follows:
■
Authority: 42 U.S.C. 7401, et seq.
6. Appendix A to Part 70 is amended
as follows:
■ a. By adding paragraph (d) under
Alabama; and
■ b. By adding paragraph (jj) under
California;
■ c. By adding paragraph (c) under
Colorado;
■ d. By adding paragraph (d) under
District of Columbia;
■ e. By adding paragraph (c) under
Georgia;
■ f. By adding paragraph (d) under
Hawaii;
■ g. By adding paragraph (c)under
Illinois;
■ h. By adding paragraph (m) under
Iowa;
■ i. By adding paragraph (e) under
Kansas;
■ j. By adding paragraph (c) under
Louisiana;
■ k. By adding paragraph (c) under
Maine;
■ l. By adding paragraph (d) under
Maryland;
■ m. By adding paragraph (d) under
Minnesota;
■ n. By adding paragraph (c) under
Mississippi;
■ o. By adding paragraph (x) under
Missouri;
■ p. By adding paragraph (k) under
Nebraska, City of Omaha; LincolnLancaster County Health Department;
■ q. By adding paragraph (d) under
Nevada;
■ r. By adding paragraph (c) under New
Hampshire;
■ s. By adding paragraph (e) under New
York;
■ t. By adding paragraph (d) under
Ohio;
■ u. By adding paragraph (c) under
Oklahoma;
■ v. By adding paragraph (c) under
Pennsylvania;
■ w. By adding paragraph (c) under
Rhode Island;
■ x. By adding paragraph (c) under
South Carolina;
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■
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y. By adding paragraph (c) under
South Dakota;
■ z. By adding paragraph (f) under
Tennessee;
■ aa. By adding paragraph (c) under
Utah;
■ bb. By adding paragraph (c) under
Vermont;
■ cc. By adding paragraph (c) under
Virgin Islands;
■ dd. By adding paragraph (c) under
Virginia;
■ ee. By adding paragraph (j) under
Washington;
■ ff. By adding paragraph (f) under West
Virginia; and
■ gg. By adding paragraph (c) under
Wisconsin.
Additions to the Appendix are set out
to read as follows:
■
Appendix A to Part 70—Approval
Status of State and Local Operating
Permits Programs
*
*
*
*
*
*
*
*
Alabama
*
*
(d) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
California
*
*
(jj) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Colorado
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
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
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Sfmt 4700
82267
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Georgia
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Hawaii
*
*
*
*
*
(d) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
Illinois
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
*
Iowa
*
(m) 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.
Kansas
*
*
*
*
*
(e) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
Louisiana
*
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(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Maine
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Maryland
*
*
*
*
*
(d) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
Minnesota
*
*
(d) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Mississippi
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Missouri
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*
*
*
*
*
(x) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
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*
*
17:29 Dec 29, 2010
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Nebraska; City of Omaha; Lincoln-Lancaster
County Health Department
*
*
*
*
*
(k) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Nevada
*
*
*
*
*
(d) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
New Hampshire
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
New York
*
*
(e) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
*
Ohio
*
(d) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Oklahoma
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
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Fmt 4700
Sfmt 4700
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
Pennsylvania
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
Rhode Island
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
South Carolina
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
South Dakota
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Tennessee
*
*
*
*
*
(f) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
*
*
*
*
*
*
*
*
*
*
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Wisconsin
Utah
*
*
*
*
*
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Vermont
*
*
*
*
*
*
*
*
*
[FR Doc. 2010–32757 Filed 12–29–10; 8:45 am]
*
(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.
BILLING CODE 6560–50–P
Virgin Islands
Approval and Promulgation of State
Plans for Designated Facilities and
Pollutants; State of Florida; Control of
Large Municipal Waste Combustor
(LMWC) Emissions From Existing
Facilities
*
*
*
*
*
(c) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
Virginia
*
*
*
*
Washington
*
*
*
*
(j) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
West Virginia
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*
*
*
[EPA–R04–OAR–2010–0392(a); FRL–9246–
6]
Environmental Protection
Agency (EPA).
ACTION: Direct final rule; notice of
administrative change.
AGENCY:
EPA is approving the Clean
Air Act (CAA) section 111(d)/129 State
Plan (the Plan) submitted by the Florida
Department of Environmental Protection
(FDEP) for the State of Florida on July
12, 2007, for implementing and
enforcing the Emissions Guidelines
(EGs) applicable to existing Large
Municipal Waste Combustors (LMWCs).
These EGs apply to municipal waste
combustors with a capacity to combust
more than 250 tons per day of
municipal solid waste (MSW).
DATES: This direct final rule is effective
February 28, 2011 without further
notice, unless EPA receives adverse
comment by January 31, 2011. If EPA
receives such comments, it will publish
a timely withdrawal of the direct final
rule in the Federal Register and inform
the public that the rule will not take
effect.
Submit your comments,
identified by Docket ID Number EPA–
R04–OAR–2010–0392 by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. E-mail: garver.daniel@epa.gov.
3. Fax: (404) 562–9095.
4. Mail: EPA–R04 OAR–2010–0392,
Daniel Garver, U.S. Environmental
ADDRESSES:
*
*
(f) For any permitting program located in
the State, insofar as the permitting threshold
provisions concern the treatment of sources
of GHG emissions as major sources for
purposes of title V, EPA approves such
provisions only to the extent they require
permits for such sources where the source
emits or has the potential to emit at least
100,000 tpy CO2e, as well as 100 tpy on a
mass basis, as of July 1, 2011.
VerDate Mar<15>2010
40 CFR Part 62
SUMMARY:
*
(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.
*
ENVIRONMENTAL PROTECTION
AGENCY
17:29 Dec 29, 2010
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Protection Agency, Region 4, 61 Forsyth
Street SW, Atlanta, Georgia 30303.
5. Hand Delivery or Courier: Mr.
Daniel Garver, Air Toxics Assessment
and Implementation Section, Air Toxics
and Monitoring Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW,
Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
hours of business are Monday through
Friday, 8:30 am to 4:30 pm, excluding
federal holidays.
Instructions: Direct your comments to
Docket ID Number EPA–R04–OAR–
2010–0392. 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
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
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, 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.
Docket: All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
E:\FR\FM\30DER1.SGM
30DER1
]]>Agencies
[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82254-82269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32757]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 70
[EPA-HQ-OAR-2009-0517; FRL-9245-4]
RIN 2060-AQ63
Action To Ensure Authority To Implement Title V Permitting
Programs Under the Greenhouse Gas Tailoring Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: The final greenhouse gas (GHG) Tailoring Rule includes a step-
by-step implementation strategy for issuing 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 narrowing its
previous approval of certain State permitting thresholds for GHG
emissions so that only sources that equal or exceed the GHG thresholds
established in the final Tailoring Rule would be covered as major
sources by the Federally-approved programs in the affected States. By
raising the GHG thresholds that apply title V permitting to major
sources in the affected States, this final rule will reduce the number
of sources that will be issued 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 December 30, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2009-0517. All documents in the docket are listed on the
https://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through https://www.regulations.gov or in hard copy at the EPA Docket Center EPA/DC,
EPA West, Room 3334, 1301 Constitution Avenue, Northwest, Washington,
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding
[[Page 82255]]
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the EPA Docket Center is
(202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Jeff Herring, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle 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:
------------------------------------------------------------------------
Contact for regional
office (person,
EPA regional office mailing address, Permitting authority
telephone number)
------------------------------------------------------------------------
I........................... Dave Conroy, Chief, Connecticut,
Air Programs Massachusetts,
Branch, EPA Region Maine, New
1, 5 Post Office Hampshire, Rhode
Square, Suite 100, Island, and
Boston, MA 02109- Vermont.
3912, (617) 918-
1661.
II.......................... Raymond Werner, New Jersey, New
Chief, Air Programs York, Puerto Rico,
Branch, EPA Region and Virgin Islands.
2, 290 Broadway,
25th Floor, New
York, NY 10007-
1866, (212) 637-
3706.
III......................... Kathleen Cox, Chief, District of
Permits and Columbia, Delaware,
Technical Maryland,
Assessment Branch, Pennsylvania,
EPA Region 3, 1650 Virginia, and West
Arch Street, Virginia.
Philadelphia, PA
19103-2029, (215)
814-2173.
IV.......................... Lynorae Benjamin, Alabama, Florida,
Chief, Regulatory Georgia, Kentucky,
Development Branch, Mississippi, North
Air, Pesticides and Carolina, South
Toxics Management Carolina, and
Division, EPA Tennessee.
Region 4, Atlanta
Federal Center, 61
Forsyth Street,
SW., Atlanta, GA
30303-3104, (404)
562-9033.
V........................... J. Elmer Bortzer, Illinois, Indiana,
Chief, Air Programs Michigan,
Branch (AR-18J), Minnesota, Ohio,
EPA Region 5, 77 and Wisconsin.
West Jackson
Boulevard, Chicago,
IL 60604-3507,
(312) 886-1430.
VI.......................... Jeff Robinson, Arkansas, Louisiana,
Chief, Air Permits New Mexico,
Section, EPA Region Oklahoma, and
6, Fountain Place Texas.
12th Floor, Suite
1200, 1445 Ross
Avenue, Dallas, TX
75202-2733, (214)
665-6435.
VII......................... Mark Smith, Chief, Iowa, Kansas,
Air Permitting and Missouri, and
Compliance Branch, Nebraska.
EPA Region 7, 901
North 5th Street,
Kansas City, KS
66101, (913) 551-
7876.
VIII........................ Carl Daly, Unit Colorado, Montana,
Leader, Air North Dakota, South
Permitting, Dakota, Utah, and
Monitoring & Wyoming.
Modeling Unit, EPA
Region 8, 1595
Wynkoop Street,
Denver, CO 80202-
1129, (303) 312-
6416.
IX.......................... Gerardo Rios, Chief, Arizona; California;
Permits Office, EPA Hawaii and the
Region 9, 75 Pacific Islands;
Hawthorne Street, Indian Country
San Francisco, CA within Region 9 and
94105, (415) 972- Navajo Nation; and
3974. Nevada.
X........................... Nancy Helm, Manager, Alaska, Idaho,
Federal and Oregon, and
Delegated Air Washington.
Programs Unit, EPA
Region 10, 1200
Sixth Avenue, Suite
900, Seattle, WA
98101, (206) 553-
6908.
------------------------------------------------------------------------
I. General Information
A. Does this action apply to me?
Entities affected by this action include States, local permitting
authorities, and Tribal authorities.
Entities potentially affected by this rule also include sources in
all industry groups, which have a direct obligation under the Clean Air
Act (CAA or Act) to apply for and operate pursuant to a title V permit
for GHGs that meet the applicability thresholds set forth in the
Tailoring Rule. The majority of entities potentially affected by this
action are expected to be in the following groups:
------------------------------------------------------------------------
Industry group NAICS \a\
------------------------------------------------------------------------
Agriculture, fishing, and hunting...... 11.
Mining................................. 21.
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.
[[Page 82256]]
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. How is this preamble organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
II. Overview of the Final Rule
III. Proposed Rule
IV. Final Rule
A. Narrowing of Title V Programs Under Parts 70 and 52
B. Legal Basis
1. Title V Applicability
2. Minimum Requirements for Approved Title V Programs
3. Basis for Reconsideration and Narrowing of Approval
C. Authority for EPA Action
V. Comments and Responses
VI. Effective Date
VII. Statutory and Executive Orders Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045--Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
II. Overview of the Final Rule
This action finalizes EPA's proposal to narrow the approval of
title V operating permit programs that we included in what we call the
proposed Tailoring Rule, ``Prevention of Significant Deterioration and
Title V Greenhouse Gas Tailoring Rule: Proposed Rule,'' 74 FR 55292,
55340 (October 27, 2009). EPA finalized the Tailoring Rule by Federal
Register notice dated June 3, 2010, ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule: Final Rule,''
75 FR 31,514.
In the final Tailoring Rule, EPA narrowed the applicability of
title V to GHG-emitting sources at or above specified thresholds by
setting thresholds at which GHG emissions become subject to regulation
for Prevention of Significant Deterioration (PSD) and title V
purposes.\1\ 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 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 emissions only if, as of July 1, 2011, it emits GHGs at or
above 100,000 tpy measured on a carbon dioxide equivalent
(CO2e) basis, and it also emits GHGs at levels at or above
the statutory 100 tpy mass-based threshold generally applicable to all
pollutants subject to regulation. The Tailoring Rule thresholds
alleviate the overwhelming administrative burdens and costs that using
the statutory thresholds alone for the permitting thresholds would
place on title V permitting authorities and sources.
---------------------------------------------------------------------------
\1\ Only the title V provisions are relevant for this action.
---------------------------------------------------------------------------
However, in proposing the Tailoring Rule, EPA recognized that even
after it finalized the Tailoring Rule, some approved State title V
programs would--until they were revised--continue to use the statutory
thresholds for purposes of the permitting thresholds, even though the
States would not have sufficient resources to implement the title V
program at those levels. Accordingly, the proposed Tailoring Rule
included a proposal to limit EPA's previous approval of title V
programs to the extent those provisions required permits for sources
whose emissions of GHG equal or exceed 100 tpy but are less than the
permitting threshold of the Tailoring Rule.\2\ When EPA finalized the
Tailoring Rule, EPA did not finalize that part of the proposal.
Instead, EPA waited to collect more information from the States to
determine whether such action was necessary, and if so, for which
States. As detailed in the following, EPA is now finalizing that part
of the Tailoring Rule proposal for most permitting authorities.
---------------------------------------------------------------------------
\2\ The permitting threshold originally proposed for the
Tailoring Rule was 25,000 tpy CO2e. After considering
public comment on the proposal, EPA increased its estimates of the
costs and burdens of permitting and finalized a permitting threshold
of 100,000 tpy CO2e.
---------------------------------------------------------------------------
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 narrow its approval of any title V programs. Some States informed
EPA in their ``60 day letters'' or subsequently that they have adequate
authority to issue permits to sources of GHGs and that they have
interpreted the requirements of their approved title V programs
consistent with the final Tailoring Rule thresholds. Other States and
permitting authorities either indicated that their programs would
require changes to permit GHG sources at the final Tailoring Rule
thresholds, or did not provide a clear indication of the scope of their
title V programs with respect to GHG sources.
Thus, in this action, EPA is narrowing its previous approval of
most State title V programs to the extent the programs require title V
permits for sources of GHG emissions below the Tailoring Rule
thresholds. The other portions of these title V programs, including
portions requiring permits for GHG-emitting sources with emissions at
or above the Tailoring Rule thresholds, remain approved. States
affected by this rule will not be required to take any action under the
Federal CAA 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
[[Page 82257]]
the final Tailoring Rule threshold of 100,000 tpy CO2e (and
100 tpy mass basis). This action ensures that the Federally-approved
programs applicable in the affected States do not require title V
permitting for sources due to their status as major sources of GHG
emissions as of January 2, 2011.
III. Proposed Rule
We assume familiarity here with the statutory and regulatory
background discussed in the preambles for the Tailoring Rule proposal
and final action, and will only briefly summarize that background here.
Title V of the CAA requires, among other things, a ``major source''
to obtain an operating permit that: consolidates all CAA requirements
applicable to the source into a document; includes conditions necessary
to assure compliance with such requirements; provides for review of
these documents by EPA, States, and the public; and requires permit
holders to track, report, and annually certify their compliance status
with respect to their permit requirements.
A ``major source'' is defined to include, among other things, a
source that actually emits or has the potential to emit 100 tpy or more
of ``any air pollutant.'' CAA sections 501(2), 302(j). See also 40 CFR
70.2 and 71.2. Since 1993, EPA has interpreted the CAA to define a
``major source'' for purposes of title V to include any source that
emits, or has the potential to emit, at least 100 tpy of an air
pollutant subject to regulation under the CAA. Memorandum from Lydia N.
Wegman, Deputy Director, Office of Air Quality Planning and Standards,
U.S. EPA, ``Definition of Regulated Air Pollutant for Purposes of Title
V'' (Apr. 26, 1993); 75 FR 31553-54.
In recent months, EPA completed four distinct actions related to
regulation of GHGs under the CAA. These actions include, as they are
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which we issued in a single final action,\3\ the ``Johnson
Memo Reconsideration'' (also called the ``Timing Decision''),\4\ the
``Light-Duty Vehicle Rule'' (LDVR, or simply the ``Vehicle Rule''),\5\
and the ``Tailoring Rule.'' \6\ In the Endangerment Finding, which is
governed by CAA Sec. 202(a), the Administrator exercised her
judgement, based on an exhaustive review and analysis of the science,
to conclude that ``six greenhouse gases taken in combination endanger
both the public health and the public welfare of current and future
generations.'' 74 FR 66496. The Administrator also found ``that the
combined emissions of these greenhouse gases from new motor vehicles
and new motor vehicle engines contribute to the greenhouse gas air
pollution that endangers public health and welfare under CAA section
202(a).'' Id. The Endangerment Finding led directly to promulgation of
the Vehicle Rule, also governed by CAA Sec. 202(a), in which EPA set
standards for the emission of GHGs for new motor vehicles built for
model years 2012-2016. 75 FR 25324. The other two actions, the Timing
Decision and the Tailoring Rule, governed by the PSD and title V
provisions in the CAA, were issued to address the automatic statutory
triggering of these programs for GHGs due to the establishment of the
first controls for GHGs under the Act. More specifically, the Timing
Decision reiterated EPA's interpretation that only pollutants subject
to regulation under the Act can trigger major source status for
purposes of title V, and further concluded that the earliest date GHG
would be subject to regulation for purposes of title V would be January
2, 2011. The Tailoring Rule established a series of steps by which PSD
and title V permit requirements for GHG could be phased in, starting
with the largest sources of GHG emissions. 75 FR 31514.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
In the proposed Tailoring Rule, EPA proposed a major stationary
source threshold for purposes of title V of 25,000 tpy for GHG on a
CO2e basis, for at least a specified period. EPA recognized
that even so, approved State title V programs would--until they were
revised--continue to use the statutory threshold of 100 tpy for GHG on
a mass basis for purposes of the permitting threshold, even though
permits for sources below the Tailoring Rule threshold were not
required under Federal regulations and the States would not have
sufficient resources to implement the title V program at the statutory
threshold for GHG-emitting sources. This would result in the same
problems of overwhelming administrative burdens and costs that we
designed the Tailoring Rule to address. Accordingly, the proposed
Tailoring Rule included a proposal to limit EPA's previous approval of
title V programs to the extent those provisions required permits for
sources whose emissions of GHG equal or exceed 100 tpy but are less
than the permitting threshold of the Tailoring Rule.
EPA relied for its authority for the proposed limitations of
approval on CAA section 301(a), as it incorporates the authority of an
agency to reconsider its actions, and in the Administrative Procedure
Act (APA) section 553. See 74 FR 55345. EPA indicated in the proposal
that it considered and decided against issuing a notice of deficiency
under CAA section 502(i)(1), in part because EPA did not anticipate
that program submissions would be necessary following EPA's action to
limit approvals. 74 FR 55345-55346.
In the final Tailoring Rule, EPA adopted a 100,000 tpy
CO2e permitting threshold for title V permitting of GHG
emissions as of July 1, 2011, committed the agency to take future steps
addressing smaller sources, and excluded the smallest sources from
title V permitting for GHG emissions until at least April 30, 2016.
The mechanism EPA chose in the final rule to implement the 100,000
tpy CO2e threshold for GHG emissions was slightly different
than what EPA had proposed. In response to comments from States, in
place of providing a definition in part 70 of ``major source'' with
thresholds specific to GHG sources, the final Tailoring Rule amended
the definition of ``major source'' to reflect EPA's long-standing
interpretation that applicability for ``major stationary source'' under
CAA sections 501(2)(B) and 302(j) and 40 CFR 70.2 and 71.2 is triggered
by sources of pollutants ``subject to regulation.'' EPA then reflected
the permitting thresholds for GHGs within a definition of the term
``subject to regulation'' that was also added to parts 70 and 71.
Some States advised EPA that they would likely be able to implement
the Tailoring Rule thresholds by interpreting provisions in their
approved title V programs. A State's implementation of the Tailoring
Rule in this manner would obviate the need for EPA to narrow its
approval of the State's title V program. Thus, in the final Tailoring
Rule, EPA deferred making any decision regarding whether to narrow its
approval of any title V programs until after learning how States
intended to implement the Tailoring Rule. Rather than taking final
action on
[[Page 82258]]
our proposal to limit approval for State title V programs, EPA asked
States to submit information--in the form of letters due within 60 days
of publication of the final Tailoring Rule (which we refer to as the
60-day letters)--that would help EPA determine what action it would
need to take to ensure that GHG sources would be permitted consistent
with the final Tailoring Rule, and specifically for which States it
would need to limit its approval of State title V programs.
Almost all States submitted 60-day letters. After reviewing the
letters, some States have indicated that they have been able to
interpret their existing approved title V programs in a manner
consistent with the final Tailoring Rule. Other permitting authorities
indicated that they needed regulatory or legislative changes either to
implement title V permitting for GHG sources, or else to apply the
final Tailoring Rule thresholds when they implement title V permitting
for GHG sources. Some States indicated that some regulatory or
legislative changes to their title V programs were necessary, but did
not clearly indicate which types of changes were required. In some
cases, the State's 60-day letter addressed PSD permitting but not title
V permitting, or else did not clearly distinguish between the two
programs in discussing how the State intended to implement permitting
of GHG sources. Finally, a few States did not submit 60-day letters.
Most States that need to take some action indicated that they were
actively in the process of updating their title V programs to be
consistent with the final Tailoring Rule. Indeed, many programs were
projected, as of the date of the 60-day letter, to be revised to
incorporate the Tailoring Rule threshold at the State level before
January 2, 2011.
IV. Final Rule
A. Narrowing of Title V Programs Under Parts 70 and 52
EPA is taking final action to narrow its approval of the title V
program for certain States. In the final Tailoring Rule, EPA
established 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 GHGs will become subject to
title V requirements even where the sources emit GHGs below the final
Tailoring Rule thresholds. Under the final Tailoring Rule, GHGs emitted
below the Tailoring Rule thresholds are not treated as a pollutant
``subject to regulation'' under the CAA (and thus, under the final
Tailoring Rule, a source emitting GHGs below the Tailoring Rule
thresholds would not be treated as a major stationary source subject to
title V on account of its GHG emissions). Thus, EPA is now narrowing
its approval of most approved title V programs so that those title V
programs are approved to apply to GHG-emitting sources only if those
sources emit GHGs at or above the final Tailoring Rule thresholds. EPA
is accomplishing this by reconsidering and narrowing its previous
approval of those title V programs to the extent they apply to GHG-
emitting sources that emit below the final Tailoring Rule thresholds.
In the proposed Tailoring Rule, EPA proposed to narrow its approval
for all 50 States, as well as the District of Columbia, Puerto Rico,
and the U.S. Virgin Islands.\7\ EPA now finalizes this narrowing of
approval for the States with title V programs that will apply to GHG
emissions at below-Tailoring Rule levels as of January 2, 2011, and for
States that EPA cannot clearly determine do not fall in this category.
The States for whom EPA is narrowing its approval of the title V
program in this action are: Alabama, California, Colorado, District of
Columbia, Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maine,
Maryland, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New
Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South
Carolina, South Dakota, Tennessee, Utah, Vermont, Virgin Islands,
Virginia, Washington, West Virginia, and Wisconsin. For all the other
States--States with no authority to permit sources due to their status
as major sources of GHG or States which apply the Tailoring Rule
thresholds by interpretation--EPA is not taking final action on its
proposal to narrow its approval of the title V program at this time
because those States will not subject GHG sources with emissions below
the Tailoring Rule thresholds to the requirements of title V on January
2, 2011.
---------------------------------------------------------------------------
\7\ 40 CFR 70.2 defines ``State'' to include any non-Federal
permitting authority, including local, interstate and statewide
permitting authorities, and also including the District of Columbia,
the Commonwealth of Puerto Rico, and U.S. territories, although
``[w]here such meaning is clear from the context, `State' shall have
its conventional meaning.'' This notice follows the same approach to
the use of the term ``State.''
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For most States, title V programs are Federally-approved only under
40 CFR part 70, and EPA need only amend Appendix A to part 70 in order
to narrow its approval of the title V program. However, in some cases,
States have chosen to submit their title V programs as part of their
State implementation plans (SIPs) and EPA has approved those programs
into the SIP as codified in 40 CFR part 52. Three States [Arizona
(Pinal County Air Quality Control District)], Minnesota, and Wisconsin)
whose title V programs require narrowing have title V applicability
provisions that were Federally approved under both part 70 and part 52.
For these States, EPA is amending its approval of the title V program
in both part 70 and part 52, in order to ensure that the scope of the
approved title V program is consistent in both parts.
B. Legal Basis
EPA is narrowing 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 approval is being narrowed by this action
will continue to be fully approved under CAA section 502.
Among the minimum requirements for a title V program are those for
``adequate personnel and funding to administer the program.'' CAA
section 502(b)(4). These requirements need to be understood in context
of Congress' clear concern for ``the need for expeditious action by the
permitting authority on permit applications and related matters.'' CAA
section 502(b)(8); see also CAA sections 502(b)(6), 502(b)(7), &
503(c), 40 CFR 70.4(b)(8).
The flaw in the prior approved programs is that certain program
provisions were phrased so broadly that they could, under certain
circumstances, sweep in more sources than the permitting authority
could process in an expeditious manner in light of the resources that
were available or could be made available. Thus, EPA is narrowing the
scope of its approval of those title V provisions to include, for
purposes of GHG emissions, only title V permitting for sources emitting
GHGs at or above final Tailoring Rule thresholds. EPA believes
permitting at these thresholds will require resources at a level
consistent with the descriptions of adequate resources the State
provided, and EPA determined in the final Tailoring Rule that States
will have adequate resources to issue operating permits to sources
emitting GHGs at this level.
As noted above, for three States it is necessary to revise the SIP
in order to
[[Page 82259]]
narrow the approved title V program. The basis for narrowing the
program is the same under part 52 as under part 70. Indeed, EPA does
not believe it would make sense to narrow its approval under part 70
without also narrowing its approval under part 52. Accordingly, for
these States EPA is not only exercising its authority to reconsider its
approval of the title V program, but also its authority to reconsider
and to correct errors in its approval of a SIP.
EPA is narrowing its approval of the title V programs for all
States that have indicated that they have authority under their title V
programs to issue permits to sources of 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 did not clearly indicate to EPA whether they are 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
issue permits to sources due to their emissions of 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 did not provide a 60-day letter with sufficient information to
determine the status of their title V permit programs in relation to
GHG sources. EPA believes it is appropriate to narrow the approved
title V program for all of these States. In the case of programs that
have made State-level changes but have not yet received EPA approval
for those changes, this approach provides an efficient means of
ensuring that at no time is there a requirement under a Federally-
approved program for sources below the final Tailoring Rule threshold
to obtain a permit. For this reason, as a precautionary matter, EPA is
narrowing approval for States that did not inform us that they can
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\ 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 narrowing its approval of
programs ``to the extent'' they require sources of GHG in excess of the
threshold to apply for title V permits as major sources of GHG. Thus,
if indeed a State's program does not require permits for these sources
at all, there are no consequences to sources or the permitting
authority from EPA's decision to narrow the scope of the State's
approval.\9\ On the other hand, if EPA were to refrain from narrowing
its approval, and then learn that the program indeed does require
sources that emit or have the potential to emit 100 tpy or more of GHGs
on a mass basis to apply for title V permits, there would be
significant adverse consequences for the permitting authority and
sources, as described previously in this final rule and in the final
Tailoring Rule. Accordingly, EPA is refraining from narrowing the title
V programs for States that cannot implement the Tailoring Rule
thresholds only if EPA is certain that those State programs do not
require permits for sources due to their emissions of GHG.
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\8\ If a State with an approved title V program lacks any
authority to permit sources that are major sources subject to title
V as a result of their GHG emissions, then there is no title V
permit program ``applicable to the source'' and those sources in
that State have no obligation to apply for a title V permit until
after such time as a permit program becomes applicable to them. See
CAA section 503(a). EPA intends to work with States, through program
revisions, notices of deficiency and/or application of the Federal
title V program, in order to assure that major sources of GHGs in
all States are subject to title V programs.
\9\ Likewise, if a State did not provide sufficient information
to EPA in a 60-day letter and it turned out that the State could
apply the permitting thresholds of the final Tailoring Rule under
its existing approved title V program, there would be no harm to the
permitting authority or sources as a result of EPA's decision to
narrow its approval consistent with the final Tailoring Rule
thresholds.
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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.
1. Title V Applicability
Each of the States subject to this rule has an approved title V
operating permits program and has not clearly indicated to EPA that it
has the ability to permit sources of GHG consistent with the thresholds
in the final Tailoring Rule. In most of these States, the approved
title V program contains applicability provisions that are written
broadly to include all pollutants subject to regulation under the CAA
for the purposes of determining whether a source is a major source
covered by the title V operating permits program. As a result, as soon
as EPA promulgates a rule regulating a new pollutant under any
provision of the CAA, these title V programs expand to cover additional
sources that are major for that new pollutant. Depending on the
pollutant, and the number and size of sources that emit it, these
applicability provisions could result in a required significant and
rapid expansion of the title V program. This is precisely what is
happening at present, now that GHG will become subject to regulation
under CAA section 202(a) and will become subject to PSD when emitted
from certain stationary sources starting on January 2, 2011.
Importantly, the States affected by this action do not interpret
their applicability provisions 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 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 address
new pollutants.
This sudden expansion of permitting responsibilities is precisely
what is now happening in the case of GHGs. As described in the Timing
Decision and final Tailoring Rule, GHG will become subject to
regulation on January 2, 2011. EPA defined GHGs as the group of six air
pollutants made up of carbon dioxide, methane, nitrous oxide, sulfur
hexafluoride, hydrofluorocarbons, and perfluorocarbons. 75 FR 31514,
31519 (June 3, 2010) (Tailoring Rule discussion); 75 FR 25324 (May 7,
2010) (LDVR). Absent the limits of the final Tailoring Rule, sources
that emit or have the potential to emit at least 100 tpy of GHGs would
be potentially subject to title V permitting as of that date. EPA does
not have information showing that the approved title V programs in
States subject to this rule can interpret their programs more narrowly,
to apply to only 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 programs more narrowly and, as a
result, are not subject to this action.
[[Page 82260]]
The scale of the administrative program needed to effectively
permit all sources emitting GHGs at the 100 tpy level has highlighted
the unconstrained nature of the title V program's applicability
provisions. EPA has recognized that immediately subjecting major
sources of GHGs at the 100 tpy level to title V requirements is
administratively unmanageable and creates absurd results that were not
intended by Congress when it enacted title V. Thus, in the final
Tailoring Rule, EPA implemented limits on when GHGs become ``subject to
regulation'' for purposes of title V, such that emissions of GHGs will
not trigger major source status, and thus will not trigger title V
permit requirements, unless the source emits both 100 tpy of GHG on a
mass basis and 100,000 tpy CO2e of GHG as of July 1, 2011 or
later. EPA included this limit in its regulations, and through this
limit greatly reduced the extent of title V applicability. This limit
was set at a level at which EPA determined States would have the
resources to implement a title V program for GHG emissions. By
contrast, the approved State programs that are subject to this rule do
not incorporate the thresholds of the final Tailoring Rule. As a
result, many or all of these State programs implement title V
applicability for GHG sources more broadly--indeed, much more broadly,
to far more sources and to much smaller sources--than EPA's regulations
do. This is problematic to the extent it may interfere with the State's
ability to meet minimum requirements for title V programs, as discussed
in the following section.
2. Minimum Requirements for Approved State Title V Programs
Each of the States subject to this rule submitted a title V program
for approval. In order to be approved by EPA, the State program was
required to meet certain minimum requirements laid out in the CAA and
in 40 CFR part 70. One of these requirements, contained in 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(b)(6) through (b)(8).
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.
Therefore, at the time that the State submitted the title V program
for EPA approval, the title V program was required to include
assurances that adequate resources would be available to process title
V permits in an expeditious manner, according to the requirements of
the CAA and part 70.
The title V programs affected by this action, however, will not be
able to meet these minimum requirements for a title V program as a
result of their applicability to GHG-emitting sources. In the proposed
and final Tailoring Rule, EPA stated that on a nationwide basis,
applying title V to GHG-emitting sources at the 100 tpy level will
result in far greater numbers of sources (over 6 million) requiring
permitting than currently do (about 15,000), and the great majority of
these additional sources would be smaller than the sources currently
subject to title V. EPA added that the administrative burdens
associated with permitting these large numbers of small sources would
overwhelm the affected permitting authorities. As a result, for each
State, EPA proposed to rescind approval of the part of the title V
program that applies title V to GHG-emitting sources below the
Tailoring Rule thresholds. During the comment period on this proposal,
no authority contested this understanding of the facts, none stated
that it could administer title V at the 100 tpy levels, and none
contested the proposal on grounds that it has adequate resources. In
the final Tailoring Rule, EPA refined, on the basis of comments, the
precise extent of the administrative burden, but confirmed that the
burden was overwhelming and that States lacked adequate resources. As
noted above, in the final Tailoring Rule, EPA requested that States
submit letters within 60 days of publication of the rule describing how
they intended to implement title V for 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 is clear that none of the States had included in the title
V program submitted for approval an adequate plan or strategy to assure
resources to administer the title V program for their 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 (consistent with Federal law) to match their resources must
be narrowed to include such constraints.\10\
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\10\ As stated earlier, States included in this rule are in this
situation, or else EPA currently lacks sufficient information to
determine that they are not in this situation.
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3. Basis for Reconsideration and Narrowing of Approval
Based on the previous analysis, it is clear that EPA's approval of
the title V programs subject to this action was flawed. They each are
structured in a manner that may impose a title V permitting requirement
on sources of pollutants newly subject to regulation under the Act
without limitations, and yet they do not have a plan for acquiring
resources to adequately permit large new categories of sources. As
explained previously, the combination of these title V programs'
broader applicability to additional stationary sources that emit
pollutants newly subject to regulation, and the failure of the approved
title V program to plan for adequate resources for that broader
applicability--and to ensure that permits could be issued consistent
with the requirements for expeditious processing of permit
applications--is a flaw in these programs. In short, the title V
program applicability provisions and the assurances provided in the
State program submission are mismatched and therefore EPA needs to
reconsider its approval of these programs. As discussed previously,
EPA's recently promulgated GHG rules have highlighted this flaw.
It may be true that at the time the affected States submitted their
State programs for approval, the precise course of events that have
recently transpired concerning GHGs and that have exposed the mismatch
between title V applicability and State assurances may have been
difficult to foresee. Even so, it could have been generally foreseen
that the breadth of the affected State program applicability
provisions, combined with the programs' limited State assurances, was
at least a potential mismatch that could eventually lead to title V
applicability greatly outstripping permitting authority resources. EPA
does not believe it is required to wait for that to occur, and then
issue a Notice of Deficiency (NOD), to address the issue. Rather, this
is a flaw in the title V programs that provides a basis for EPA to
reconsider its approval.
In the proposed Tailoring Rule, EPA proposed to narrow its approval
for all approved State programs. EPA now finalizes this narrowing of
approval for only the States which have indicated
[[Page 82261]]
that their title V programs will apply to sources that emit or have the
potential to emit at least 100 tpy of GHG as of January 2, 2011, or for
which EPA has not been able to clearly establish whether or not the
program will apply to such sources. The States for which EPA is
narrowing its approval of the approved State title V program in this
action include: Alabama, California, Colorado, District of Columbia,
Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland,
Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New
York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South
Dakota, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington,
West Virginia, and Wisconsin. 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 extent they require permits for such sources
where the source emits or has the potential to emit at least 100,000
tpy CO2e, as well as 100 tpy on a mass basis, as of July 1,
2011.'' \11\ EPA is also finalizing very similar language in the SIPs
of Arizona, Minnesota and Wisconsin in order to ensure that the
federally approved title V program in each of these States is
appropriately narrowed under part 52 as well as part 70. The language
being used for this final narrowing rule reflects minor changes from
the language proposed in the Tailoring Rule in order to clarify and
reflect the decisions about permitting thresholds reached in the final
Tailoring Rule.
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\11\ EPA notes that where an approved State program includes
multiple permitting authorities, EPA is narrowing the approved State
program if any permitting authority requires narrowing.
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EPA notes that the following States have stated either that they
can permit major sources of GHG in their approved title V program
consistent with the Tailoring Rule thresholds or that they have no
authority under their current approved title V program to permit
sources due to their status as major sources of GHG: Alaska, Arkansas,
Arizona, Connecticut, Delaware, Florida, Idaho, Indiana, Kentucky,
Massachusetts, Michigan, Montana, New Jersey, New Mexico, North
Carolina, North Dakota, Oregon, Puerto Rico, Texas, and Wyoming.
Accordingly, it is not necessary at present to narrow the title V
program approval for these States. As noted previously, EPA intends to
work with these States as necessary, through program revisions, notices
of deficiency and/or application of the Federal title V program, to
assure that major sources of GHGs in all States are subject to title V
programs, but only at the Tailoring Rule thresholds.
C. Authority for EPA Action
EPA has determined that this flaw in the approved State programs
warrants reconsideration of the prior program approvals, and narrowing
of those approvals. EPA believes it may reconsider its prior actions
under authority inherent in CAA section 502, with further support from
CAA section 301(a), and the reconsideration mechanisms provided under
CAA section 307(b) and APA section 553(e).\12\ In addition, with
respect to the two SIP revisions, EPA has authority to correct errors
in SIP approvals, as well as to reconsider them.
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\12\ See 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).
---------------------------------------------------------------------------
In approving the State programs under CAA 502(d), EPA retained
authority to revise that action. The courts have found that an
administrative agency has the inherent authority to reconsider its
decisions, unless Congress specifically proscribes the agency's
discretion to do so. See, e.g., Gun South, Inc. v. Brady, 877 F.2d 858,
862 (11th Cir. 1989) (holding that agencies have implied authority to
reconsider and rectify errors even though the applicable statute and
regulations do not provide expressly for such reconsideration); Macktal
v. Chao, 286 F.3d 822, 826-26 (5th Cir. 2002); Trujillo v. General
Electric Co., 621 F.2d 1084, 1086 (10th Cir. 1980) (``Administrative
agencies have an inherent authority to reconsider their own decisions,
since the power to decide in the first instance carries with it the
power to reconsider''); see also New Jersey v. EPA, 517 F.3d 574 (DC
Cir. 2008) (holding that an agency normally can change its position and
reverse a prior decision but that Congress limited EPA's ability to
remove sources from the list of hazardous air pollutant source
categories, once listed, by requiring EPA to follow the specific
delisting process at CAA section 112(c)(9)).\13\
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\13\ For additional case law, see Belville Mining Co. V. United
States, 999 F.2d 989, 997 (6th Cir. 1993); Dun & Bradstreet Corp. v.
United States Postal Service, 946 F.2d 189, 193 (2d Cir. 1991); Iowa
Power & Light Co. v. United States, 712 F.2d 1292 (8th Cir. 1983).
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Section 301(a) of the CAA, in conjunction with CAA section 502 and
the case law just described, provides statutory authority for EPA's
reconsideration action in this rulemaking. Section 301(a) of the CAA
authorizes EPA ``to prescribe such regulations as are necessary to
carry out [EPA's] functions'' under the CAA. Reconsidering prior
rulemakings, when necessary, is part of ``[EPA's] functions'' under the
CAA. Cf. CAA section 307(b). Furthermore, the case law previously cited
establishes that a grant of authority to approve State title V programs
carries with it the inherent right to reconsider that approval,
particularly since Congress has not prescribed any specific alternative
mechanism for such reconsideration. Thus, CAA sections 502 and 301(a)
confer authority upon EPA to undertake this rulemaking.
EPA finds further support for its authority to narrow its approvals
in APA section 553(e), which requires EPA to give interested persons
``the right to petition for the issuance, amendment, or repeal of a
rule,'' and CAA section 307(b)(1), which expressly contemplates that
persons may file a petition for reconsideration under certain
circumstances (at the same time that a rule is under judicial review).
The right to petition to reconsider, amend, or repeal presumes that an
agency has the discretion to grant such a petition. If EPA has the
authority to grant a petition from another person to reconsider, amend
or repeal a rule if justified under the CAA, then it follows that EPA
should be considered as having authority to reconsider, amend or repeal
a rule when it determines such an action is justified under the CAA,
even without a petition from another person.
EPA recently used its authority to reconsider prior actions and
limit its prior approval of a SIP in connection with California
conformity SIPs. See, e.g., 68 FR 15720, 15723 (discussing prior action
taken to limit approvals); 67 FR 69139 (taking final action to amend
prior approvals to limit their duration); 67 FR 46618 (proposing to
amend prior approvals to limit their duration, based on CAA sections
110(k) and 301(a)). EPA had previously approved SIPs with emissions
budgets based on a mobile source model that was current at the time of
EPA's approval. Later, EPA updated the mobile source model. But, even
though the model had been updated, emissions budgets would continue to
be based on the older, previously approved model in the SIPs, rather
than the updated model. To rectify this problem, EPA conducted a
rulemaking that revised the previous SIP approvals so that the
approvals of
[[Page 82262]]
the emissions budgets would expire early, when the new ones were
submitted by States and found adequate, rather than when a SIP revision
was approved. This helped California more quickly adjust its
regulations to incorporate the newer model.
EPA notes that it considered but decided not to use the NOD
process, which is explicitly provided for in CAA section 502(i), to
address the flaw presented by these program approvals. There are
several reasons why EPA determined that it was neither necessary nor
appropriate to use the NOD process to address this issue in this rule.
The CAA provides that the NOD is to be used ``whenever the
Administrator makes a determination that a permitting authority is not
adequately administering or enforcing a program'' and provides that
States must correct the deficiency within 18 months. CAA section
502(i).
Here, the problem is not with the way the State is administering or
enforcing its approved State title V program. States are issuing
permits, and modifications, and enforcing the various requirements of
title V as provided for under the Act. The flaw is the mismatch between
the breadth of the applicability provisions and the limited State
assurances of adequate resources, in light of the possibility that a
very large number of new major sources could become subject to title V.
This flaw does not relate at all to the current administration and
enforcement of the title V program, but rather to the overbroad nature
of the underlying structure and scope of the title V program. The
distinction is further underlined by the fact that section 502(i)
contemplates that States would need to take corrective action to
address the notice of deficiency. However, in the case of the flaw
addressed here, EPA believes that no further State action will be
necessary to address this mismatch once the approved title V program
has been narrowed by this action.\14\
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\14\ As noted in the Tailoring Rule, there may be good reasons
for States to update their State laws and regulations to reflect the
narrowing and the thresholds of the Tailoring Rule, but the States
will still have fully approved programs, and once the Federally-
approved program is narrowed, the obligation under Federally
approved programs to apply for a permit will no longer exist for
sources below the Tailoring Rule thresholds.
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EPA views the NOD as specific authority for addressing specific
circumstances, but concludes that it is not the sole means of changing
an approved State program, and it is not the appropriate means in these
circumstances. EPA believes nothing in section 502(i) displaces its
authority to reconsider prior program approvals and, for the reasons
described previously in this rule and in the Tailoring Rule proposal,
concludes that such a reconsideration and narrowing is warranted and
appropriate.
With respect to the two SIPs being revised, EPA is also exercising
its authority to correct errors in SIPs, pursuant to CAA section
110(k)(6), as well as its authority to reconsider its actions. Under
CAA section 110(k)(6), once EPA determines that its action in approving
the PSD SIPs was in error, EPA has the authority to correct the error
in an ``appropriate'' manner, and through the same process as the
original approval, but without requiring any further State submission.
EPA's narrowing of its approval of the title V program corrects an
error by addressing the flaw previously discussed, that the approved
program 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.
EPA believes correcting these SIPs is a reasonable exercise of its
authority for the reasons stated herein and for the reasons stated in
the PSD Narrowing Rule (``Limitation of Approval of Prevention of
Significant Deterioration Provisions Concerning Greenhouse Gas
Emitting-Sources in State Implementation Plans'').
V. Comments and Responses
Comments: Several industry commenters (4019, 4118, 4691, 5083,
5140, 5181, 5278, 5317) and one State commenter (4019) generally
disagreed with our proposal to narrow our approval of previously-
approved title V programs. Specific arguments against the proposed
approach include the following:
The EPA has overstated its authority under CAA section
301(a). The DC Circuit has observed that section 301(a)(1) ``does not
provide the Administrator with carte blanche authority to promulgate
any rules, on any matter relating to the CAA, in any manner that the
Administrator wishes.'' Where the CAA includes express provisions--such
as section 110(k)(5) (the SIP call provision)--EPA is required to
follow those provisions. (4019, 5083, 5140, 5181, 5278, 5317).
The EPA's invocation of 5 U.S.C. 553(e) is legally
indefensible. The EPA has mentioned no outstanding petition for EPA to
revisit its PSD SIP approvals, so section 553(e) appears to be
inapposite. Even where section 553(e) applies, it merely directs
agencies to allow parties to seek revisions of rules; it plainly does
not permit agencies to disregard procedural requirements--whether under
the APA or under organic statutes such as the CAA--that agencies must
follow in effecting any such revisions. (5317)
An industry commenter (4298) supports EPA's efforts to limit or
conform its prior approvals through CAA sections 301(a)(1) and
110(k)(6) with respect to applicability thresholds. However, the
commenter believes EPA should take affirmative steps to ensure that
States immediately either revise their regulations to raise existing
lower thresholds or demonstrate that they have adequate resources and
funding to manage their programs utilizing those existing lower
thresholds.
The same commenter states that EPA should issue a NOD, under CAA
section 502(i)(1), to all States concurrent with the final Tailoring
Rule, unless a State can demonstrate that it has commenced and is
committed to finalizing any changes necessary under State law to make
it consistent with the Tailoring Rule (4298). The commenter adds that
EPA should not finalize any action that would trigger GHG permitting
until each State program has b
