Action To Ensure Authority To Issue Permits Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation Plan, 82246-82254 [2010-32784]
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Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations
(e) Enforcement. The U.S. Coast
Guard may be assisted in the patrol and
enforcement of the security zones by the
San Diego Harbor Police.
Dated: December 20, 2010.
P.J. Hill,
Commander, U.S. Coast Guard, Acting
Captain of the Port San Diego, CA.
[FR Doc. 2010–32914 Filed 12–28–10; 11:15 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–HQ–OAR–2010–0107; FRL–9245–3]
RIN 2060–AQ45
Action To Ensure Authority To Issue
Permits Under the Prevention of
Significant Deterioration Program to
Sources of Greenhouse Gas
Emissions: Federal Implementation
Plan
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is establishing a federal
implementation plan (FIP) to apply in
each of seven states that have not
submitted by their established deadline
SUMMARY:
a corrective state implementation plan
(SIP) revision to apply their Clean Air
Act (CAA or Act) Prevention of
Significant Deterioration (PSD) program
to sources of greenhouse gases (GHGs).
This action will ensure that a permitting
authority—EPA—is available in these
states as of January 2, 2011, when PSD
becomes applicable to GHG-emitting
sources, to issue preconstruction PSD
permits and thereby facilitate
construction or expansion. The seven
states are: Arizona: Both Pinal County
and Rest of State (excluding Maricopa
County, Pima County, and Indian
Country), Arkansas, Florida, Idaho,
Kansas, Oregon, and Wyoming. This
action is related to EPA’s recently
promulgated final rule, published on
December 13, 2010, which we call the
GHG PSD SIP call, and in which EPA
made a finding of substantial
inadequacy and issued a SIP call for
these seven states and several others on
grounds that their SIPs do not apply the
PSD program to GHG-emitting sources.
DATES: This action is effective on
December 30, 2010.
ADDRESSES: EPA has established a
docket for this rulemaking under Docket
ID No. EPA–HQ–OAR–2010–0107. All
documents in the docket are listed in
the https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials are available
either electronically in https://www.
regulations.gov or in hard copy at the
U.S. Environmental Protection Agency,
Air Docket, EPA/DC, EPA West
Building, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the Air Docket is (202) 566–
1742.
Ms.
Cheryl Vetter, Air Quality Policy
Division, Office of Air Quality Planning
and Standards (C504–03),
Environmental Protection Agency,
Research Triangle Park, NC 27711;
telephone number: (919) 541–4391; fax
number: (919) 541–5509; e-mail
address: vetter.cheryl@epa.gov.
For information related to a specific
state, local, or tribal permitting
authority, please contact the appropriate
EPA regional office:
FOR FURTHER INFORMATION CONTACT:
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
Section, 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 .........................................
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VIII ........................................
IX ..........................................
X ...........................................
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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.
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SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities affected by this rule include
the seven state and local permitting
authorities 1 identified by EPA to have
not submitted by their deadline a SIP
revision that would apply PSD
requirements to GHG-emitting sources.
In the GHG PSD SIP call,2 EPA
determined that these seven states have
SIPs that are substantially inadequate to
achieve CAA requirements because their
PSD programs do not apply to GHGemitting sources, and EPA established
that deadline.
Entities potentially affected by this
rule also include sources in all industry
groups, which have a direct obligation
under the CAA to obtain a PSD permit
for GHGs for projects that meet the
applicability thresholds set forth in the
82247
Tailoring Rule.3 This independent
obligation on sources is specific to PSD
and derives from CAA section 165(a).
Any source that is subject to a state PSD
air permitting regulation not structured
to apply to GHG-emitting sources will
rely on this rule to obtain a permit that
contains emission limitations that
conform to requirements under CAA
section 165(a). The majority of entities
potentially affected by this action are
expected to be in the following groups:
Industry group
NAICS a
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 ...........................................
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.
6221, 6231, 6232, 6233, 6239.
8122, 8123.
8141.
Not available. Codes only exist for private households, construction
and leasing/sales industries.
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 ......................................................
Hospitals/nursing and residential care facilities .......................................
Personal and laundry services .................................................................
Residential/private households .................................................................
Non-residential (commercial) ....................................................................
a North
American Industry Classification System.
B. How is the preamble organized?
The information presented in this
preamble is organized as follows:
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I. General Information
A. Does this action apply to me?
B. How is the preamble organized?
II. Overview of Rulemaking
III. Final Action and Response to Comments
A. Authority To Promulgate a FIP
B. Timing of GHG PSD FIP
C. Substance of GHG PSD FIP
D. Period for GHG PSD FIP To Remain in
Place
E. Primacy of SIP Process
IV. Statutory and Executive Order Reviews
A. Executive Order 12866—Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132—Federalism
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
1 For convenience, we refer to ‘‘states’’ in this
rulemaking to collectively mean states and local
permitting authorities.
2 Action to Ensure Authority to Issue Permits
under the Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas Emissions:
Finding of Substantial Inadequacy and SIP Call—
Final rule, 75 FR 77698 (December 13, 2010).
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G. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898—Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
L. Congressional Review Act
V. Judicial Review
VI. Statutory Authority
II. Overview of Rulemaking
In this rulemaking, EPA is
establishing a FIP, which we call the
GHG PSD FIP, or simply, the FIP, to
apply in each of seven states that have
not submitted by December 22, 2010, a
corrective SIP revision to apply their
3 Prevention of Significant Deterioration and Title
V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR
31514 (June 3, 2010).
4 Action to Ensure Authority to Issue Permits
under the Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas Emissions:
Federal Implementation Plan—Proposed rule, 75 FR
53883 (September 2, 2010).
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CAA PSD program to sources of GHGs.
This is the deadline EPA established
after the affected states indicated that
they would not object to it, to ensure
that a permitting authority would be in
place as of January 2, 2011 to facilitate
issuance of PSD permits for
construction and modification of
sources.
This preamble should be read in
conjunction with the preamble for the
proposed rulemaking for this action,
which we call the GHG PSD FIP
proposal or the FIP proposal; 4 and the
SIP call rulemaking that is associated
with this rulemaking, including (i) the
proposed SIP call rulemaking, which we
call the GHG PSD SIP call proposal or
the SIP call proposal, and which
accompanied the FIP proposal,5 and (ii)
the final SIP call rulemaking, which we
call the GHG PSD SIP call or the SIP
call. Background information for this
5 Action to Ensure Authority to Issue Permits
under the Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas Emissions:
Finding of Substantial Inadequacy and SIP Call—
Proposed rule, 75 FR 53892 (September 2, 2010).
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rulemaking is found in those
rulemakings and in the rulemakings
referenced therein and will not be
reiterated here.
By notices dated September 2, 2010,
EPA published as companion actions
the SIP call proposal and the FIP
proposal. In the SIP call proposal, EPA
proposed to find that 13 states with
EPA-approved SIP PSD programs are
substantially inadequate to meet CAA
requirements because they do not
appear to apply PSD requirements to
GHG-emitting sources. For each of these
states, EPA proposed to require the state
(through a SIP call) to revise its SIP as
necessary to correct such inadequacies.
In the FIP proposal, EPA proposed a FIP
to apply in any state that is unable to
submit, by its deadline, a corrective SIP
revision to apply the PSD program to
sources of GHGs. The FIP would
provide authority to EPA to issue PSD
permits for construction or modification
of appropriate GHG sources in the state.
On December 1, 2010, EPA
promulgated the GHG PSD SIP call, and
EPA published it by notice dated
December 13, 2010.6 In the SIP call,
EPA finalized its finding that the SIPs
of 13 states (comprising 15 state and
local programs) are substantially
inadequate to meet CAA requirements
because they do not apply PSD
requirements to GHG-emitting sources.
In addition, EPA finalized a SIP call for
each of these states, which required the
state to revise its SIP as necessary to
correct such inadequacies. Further, EPA
established a deadline for each state to
submit its corrective SIP revision. These
deadlines, which differed among the
states, ranged from December 22, 2010,
to December 1, 2011.
Seven states received a SIP submittal
deadline of December 22, 2010, based
on information received from each state
during the public comment period that
they would not object to this deadline.
These seven states are: (1) Arizona: Both
Pinal County and Rest of State
(excluding Maricopa County, Pima
County, and Indian Country); 7 (2)
Arkansas; (3) Florida; (4) Idaho; (5)
Kansas; (6) Oregon; and (7) Wyoming.
On December 23, 2010, EPA issued a
finding under CAA section 110(c)(1)(A)
that each of the seven states ‘‘failed to
make [the] required submission’’ of the
6 Action to Ensure Authority to Issue Permits
Under the Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas Emissions:
Finding of Substantial Inadequacy and SIP Call—
Final Rule, 75 FR 77698 (December 13, 2010).
7 EPA issued to Arizona a separate finding of
substantial inadequacy, SIP call, and deadline for
SIP submittal for each of Pinal County and for the
rest of the state (excluding Maricopa County, Pima
County, and Indian Country).
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As noted earlier in this preamble, on
December 23, 2010, EPA issued a
finding that each of the seven states
affected by this rule ‘‘failed to make [the]
required submission’’ of the corrective
SIP call-mandated SIP revision by its
December 22, 2010 deadline.
Accordingly, under CAA section
110(c)(1), EPA is required to promulgate
a FIP for each of the states.
It should be noted that EPA
specifically proposed the FIP for six of
the seven states affected by this
rulemaking, all except for Wyoming.
EPA did not include Wyoming among
the states for which EPA specifically
proposed the SIP call, and, as a result,
did not include Wyoming among the
states for which EPA specifically
proposed the FIP. However, in the
proposed SIP call, EPA stated that it was
soliciting comment on all the other
states, and, if EPA received information
indicating that another state should
receive the SIP call, then EPA would,
without a supplemental or further
proposal, issue a final SIP call for that
other state.9 Similarly, EPA stated in the
FIP proposal that if EPA issued a SIP
call for that other state, and the other
state did not submit a corrective SIP
revision by its deadline, then, EPA
would finalize the FIP for that other
state, too.10
We reiterate that each of the seven
states affected by this rulemaking
specifically indicated to EPA that it
preferred that EPA promulgate a FIP to
take effect by January 2, 2011—when
sources in the state become subject to
PSD—rather than EPA not promulgate a
FIP until a later time. This is because
each state sought to assure that, as of
January 2, 2011, a permitting authority
for GHG-emitting sources would be in
place in the state. These states made this
choice by indicating that they did not
object to EPA establishing a SIP
submittal date of December 22, 2010,
when EPA made clear in the proposed
SIP call and FIP that if the state did not
submit the required SIP revision by that
date, then EPA would promulgate the
FIP the next day. 75 FR at 53904/2
(proposed SIP call); id. at 53889/2
(proposed FIP). For the most part, the
remaining states that were subject to the
SIP call indicated a later SIP submittal
date, but they believe that although this
will mean a short delay in the
availability of a permitting authority for
GHG-emitting sources in their state, that
delay will not adversely affect their
sources. EPA regional and headquarters
officials conferred extensively with state
officials concerning the states’ progress
and plans and with the National
Association of Clean Air Agencies.11
In this rulemaking, EPA is not taking
final action to promulgate a FIP for any
of the other states which EPA included
in the FIP proposal. This is because for
each of the other states, either EPA did
not finalize the SIP call or EPA did
finalize the SIP call but established a
SIP submittal deadline that has not yet
arrived. As a result, EPA has not issued
a finding of failure to submit the
required SIP revision for any of these
other states. It continues to be EPA’s
intent that if any of these other states
does not submit the required SIP
revision by its deadline, then EPA will
immediately issue a finding of failure to
submit a required SIP submission and
immediately promulgate a GHG PSD FIP
for that state.
In comments received, some
commenters stated, ‘‘Remarkably, EPA
states that it will also directly
promulgate a SIP call and FIP for any
8 In this rulemaking, EPA is finalizing for Arizona
a separate GHG PSD FIP for each of Pinal County
and for the rest of the state (excluding Maricopa
County, Pima County, and Indian Country).
9 Action to Ensure Authority to Issue Permits
under the Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas Emissions:
Finding of Substantial Inadequacy and SIP Call—
Proposed rule, 75 FR 53,895–6 (September 2, 2010).
10 Action to Ensure Authority to Issue Permits
under the Prevention of Significant Deterioration
Program to Sources of Greenhouse Gas Emissions:
Federal Implementation Plan—Proposed rule, 75 FR
53,886 (September 2, 2010).
11 Declaration of Gina McCarthy, ¶¶4–5, pp. 3–4,
‘‘EPA’s Response To Motions To Stay,’’ Coalition for
Responsible Regulation v. EPA, No. 09–1322 (and
consolidated cases) (McCarthy Declaration).
corrective SIP call-mandated SIP
revision by its December 22, 2010
deadline. EPA notified each state of the
finding by letter. Those letters are
located in the docket for this
rulemaking.
III. Final Action and Response to
Comments
A. Authority To Promulgate a FIP
In this rulemaking, EPA is finalizing
the GHG PSD FIP as proposed for each
of the seven states: (1) Arizona: Both
Pinal County and Rest of State
(excluding Maricopa County Pima
County, and Indian Country); 8 (2)
Arkansas; (3) Florida; (4) Idaho; (5)
Kansas; (6) Oregon; and (7) Wyoming.
The CAA authority for EPA to
promulgate a FIP is found in CAA
section 110(c)(1), which provides—
The Administrator shall promulgate a
Federal implementation plan at any time
within 2 years after the Administrator—(A)
finds that a State has failed to make a
required submission * * * unless the State
corrects the deficiency, and [EPA] approves
the plan or plan revision, before the
Administrator promulgates such [FIP].
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states it has inadvertently omitted from
its notice of proposed rulemaking.’’
Although the commenters do not
elaborate upon this statement, they
seem to imply that it would be improper
for EPA to finalize a FIP for such states
because we did not provide adequate
notice and opportunity for comment.
The only state for which this
comment may be relevant is Wyoming,
as noted earlier in this preamble. We
disagree with the commenters. In the
proposal, we listed the states with
approved SIP PSD programs for which
we were not proposing a finding of
substantial inadequacy and a SIP call,
and so were not proposing a FIP. But we
went on to specifically solicit comment
on whether each of those states merited
a finding, SIP call,12 and, ultimately, a
FIP; and we included citations to the
relevant SIP provisions.13 Moreover, we
generally described the circumstances
under which those states may merit a
FIP. As a result, commenters had
adequate notice that EPA could
ultimately finalize a FIP for those states
if and when they missed their SIP
submittal deadlines, and they had full
opportunity to comment if they had
relevant views or information. This was
discussed in greater detail in the SIP
call rulemaking 75 FR at 77715/6.
B. Timing of GHG PSD FIP
In the GHG PSD FIP proposal, we
stated:
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If any of the states for which we issue the
SIP Call does not meet its SIP submittal
deadline, we will immediately issue a
finding of failure to submit a required SIP
submission, under CAA section 110(c)(1)(A),
and immediately thereafter promulgate a FIP
for the state. This timing for FIP
promulgation is authorized under CAA
section 110(c)(1), which authorizes us to
promulgate a FIP ‘‘at any time within 2 years
after’’ finding a failure to submit a required
SIP submission. We intend to take these
actions immediately in order to minimize
12 During the comment period, Wyoming did
send information indicating that, in Wyoming’s
view, Wyoming did not have legal authority to
apply PSD to GHG-emitting sources and therefore
Wyoming should be included in the SIP call. A
Wyoming environmental group provided comments
during the comment period saying that it believed
Wyoming did have legal authority to apply PSD to
GHG-emitting sources. Accordingly, it is clear that
the solicitation of comment was sufficient notice to
the public. More detailed information regarding
Wyoming and other states covered in this
rulemaking may be found in the ‘‘Supplemental
Information Document for Final Action to Ensure
Authority to Issue Permits under the Prevention of
Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial
Inadequacy and SIP Call,’’ located in the docket for
this rulemaking.
13 Thus, commenters are incorrect in
characterizing EPA as having ‘‘inadvertently
omitted [Wyoming] from its notice of proposed
rulemaking.’’
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any period of time during which largeremitting sources may be under an obligation
to obtain PSD permits for their GHGs when
they construct or modify, but no permitting
authority is authorized to issue those
permits.
75 FR at 53,889/2.
In this final rulemaking, we are
proceeding in the same manner that we
proposed, and for the same reasons.
That is, we are exercising our discretion
to promulgate the FIP for each of the
seven affected states ‘‘immediately in
order to minimize any period of time
during which larger-emitting sources
may be under an obligation to obtain
PSD permits for their GHGs when they
construct or modify, but no permitting
authority is authorized to issue those
permits.’’ 75 FR at 53889/2. We believe
that acting immediately is in the best
interests of the states and the regulated
community.
EPA received comments that the
process EPA has employed in this
action, which was to propose the FIP as
a companion rule to the proposed SIP
call, and then to finalize the FIP
immediately after making a finding that
a state has not submitted the required
SIP revision by its deadline, ‘‘is not how
CAA section 110 works or how Congress
intended it to work.’’ The commenter
added that—
[O]nly after a state has * * * failed to
[submit a SIP revision] after an applicable
period as specified in the CAA or EPA
regulations * * * and after EPA has made a
determination that the SIP revision is
deficient in one or more respects, may the
Agency step in to propose a FIP rule. And
only after taking that step could EPA then
proceed * * * [to take final action on the
FIP.] Notwithstanding EPA’s strained and
out-of-context emphasis on the isolated
sentence fragment, ‘‘at any time within,’’ the
very fact that the CAA affords EPA up to two
full years in which to complete the
cooperative task of considering whether a FIP
is needed and how such a plan should be
fashioned, and the corollary fact that the Act
does not mandate any federal takeover in less
than two years, militate against EPA’s
approach here to FIP rulemaking. In
particular, those facts undermine EPA’s
assumption that it need not take the time to
develop a proposed plan specifically directed
at remedying identified deficiencies in a
given state submission, and to give states and
the regulated community a meaningful
opportunity to comment on a proposed FIP
that has been specifically developed to
address the individual needs and
circumstances of such a state. (Emphasis in
original.)
EPA disagrees with these comments.
As we stated in the proposed rule, CAA
section 110(c)(1)(A) authorizes EPA to
promulgate a FIP ‘‘at any time within 2
years after’’ finding a failure to submit
a required SIP revision. We are
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82249
promulgating the FIP immediately
because we wish to minimize any
disruption in permitting for the larger
GHG-emitting sources and we are doing
so after consultation with the affected
states. The seven states that are the
subject of this rulemaking told EPA that
they would not object to the
promulgation of a FIP at the earliest
possible deadline, or December 22,
2010, because that would ensure a
permitting authority would be in place
as of January 2, 2011. Without the FIP,
these states would be without an
approved program to issue PSD permits
for GHG-emitting sources until the
states submit, and EPA approves, a SIP
revision. The FIP provides sources in
these states an immediate mechanism to
obtain required permits for construction
and modification until the revised SIPs
are approved.
As for commenters’ analysis of CAA
section 110(c), that provision, by its
terms, imposes no constraints on when
EPA may propose a FIP. This stands in
contrast to other CAA provisions that do
impose requirements for the timing of
proposals. See CAA sections
109(a)(1)(A), 111(b)(1)(B). In light of the
lack of constraints in CAA section
110(c), EPA was free to propose the FIP
at the same time that EPA proposed the
SIP call. We do not agree that the overall
construct of CAA section 110 imposes
the implicit constraints that the
commenter identifies.
Instead, what is important is that for
each of the 13 states for which EPA
specifically proposed the FIP, which
were the same as the ones for which
EPA proposed the SIP call, the public
had adequate notice of the
circumstances under which EPA
proposed that the state would become
subject to the FIP. Those circumstances
were that if EPA finalized the SIP call,
as proposed, for the state, and if the
state did not submit a SIP revision
applying its PSD program to GHGemitting sources by the deadline, EPA
would establish a FIP for that state. In
fact, EPA did finalize the SIP call for all
but one of those 13 states and is now
finalizing the FIP for six of them.
Further, EPA received comments on the
proposed FIP from several states and/or
industries located in states for which
EPA proposed the FIP, which indicates
that the FIP proposal provided adequate
notice. See, e.g., comments identified in
the rulemaking docket as document
numbers 0084.1 (Texas), 0055.1
(Arkansas), 0066.1 (Texas Industry
Project), and 0109.1 (National Mining
Association).
Although for Wyoming EPA did not
specifically propose the SIP call or FIP,
the public had the same opportunity to
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comment on the prospect of a FIP for
Wyoming as the public did for the states
for which EPA did specifically propose
the FIP. This is because EPA solicited
comment on whether to issue a SIP call
for Wyoming (along with other states
with approved PSD programs); made
clear that if EPA received certain
information, EPA would finalize the SIP
call for Wyoming; and, further, made
clear that if EPA issued a SIP call for
Wyoming and Wyoming did not submit
the required SIP by Wyoming’s
deadline, then EPA would finalize the
FIP. In fact, Wyoming commented on
the FIP. See comment identified in the
rulemaking docket as document number
0079.1.
Moreover, EPA was clear that for each
state subject to the SIP call that did not
submit the required SIP revision by its
SIP submittal deadline, EPA would
immediately make a finding of failure to
submit and immediately promulgate a
FIP. EPA explained that this approach
was needed to assure the availability of
a permitting authority for sources in the
state.
Finally, each of the states and the
public in general had adequate notice of
the terms of the FIP as it would apply
in any state. Specifically, EPA indicated
that the FIP would apply PSD to
GHG-emitting sources at the Tailoring
Rule thresholds.
Therefore, the FIP proposal was clear
as to the circumstances under which
EPA proposed to promulgate a FIP, the
timing for the FIP, and the terms of the
FIP. Moreover, each of those three
things applied to each state that would
become subject to the SIP call.
Accordingly, the FIP proposal did, in
fact, ‘‘give states and the regulated
community a meaningful opportunity to
comment on a proposed FIP that has
been specifically developed to address
the individual needs and circumstances
of such a state,’’ as the commenter
argues the FIP proposal needed to do.
Several commenters raised an
additional objection, which was that in
their view, EPA failed to comply with
the requirements of CAA section
307(d)(3) that (i) the proposed FIP
include a summary of ‘‘the factual data
on which the proposed rule is based’’
and ‘‘the major legal interpretations and
policy considerations underlying the
proposed rule’’; and (ii) ‘‘[a]ll data,
information, and documents * * * on
which the proposed rule relies shall be
included in the docket on the date of
publication of the proposed rule.’’
(Emphasis added by one of these
commenters.) One of these commenters
explained that (a) in the SIP call
proposal, EPA had made a detailed
request that states provide information
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as to whether their state law authorized
the application of PSD to GHG-emitting
sources; (b) this detailed request
demonstrated that the proposal did not
establish the legal basis for the SIP call;
and (c) as a result, the FIP proposal did
not include ‘‘information that is
essential to determining whether a FIP
for a given state is even appropriate and
justified.’’ (Emphasis in original.) This
commenter added—
Only after EPA has received such
information, and then taken the necessary
time to evaluate the information and to make
judgments as to whether or not a given state
has authority under its SIP and other
elements of state law to regulate GHGs under
the PSD program—i.e., the steps EPA would
have to take under CAA section 307(d)(3) to
provide to the public a meaningful
‘‘summary’’ of ‘‘the factual data on which the
proposed rule is based’’ and ‘‘the major legal
interpretations and policy considerations
underlying the proposed rule’’—may EPA
propose a FIP for any state that has been
determined to lack that authority. (Emphasis
in original.)
We disagree with this comment. The
preamble for the FIP proposal included
the CAA section 307(d)(3)-required
‘‘summary’’ of the factual basis and legal
interpretations. To reiterate, EPA
identified the states for which EPA was
proposing the FIP, 75 FR at 53886 and
table II–1 and 53889/1, and added that
EPA would subject other states to the
FIP if they, too, became subject to the
SIP call, id. 53886 and table II–2 and
53889/2; described the timing for the
FIP, id. 53889/2–3; described the
substance of the FIP, id. 53889/3–
53890/1; and explained that CAA
section 110(c)(1) provided the legal
basis, id. 53889/2. The purpose of the
CAA section 307(d)(3) requirements is
to provide the public with adequate
notice, and these statements did so by
making clear the circumstances under
which EPA was proposing to
promulgate a FIP and the timing and
substance of the proposed FIP.
It is true that for any state, whether
and when EPA would finalize the FIP
for any state depended on other factors,
including whether EPA would finalize
the SIP call for that state, what deadline
EPA would establish, and whether the
state would submit its required
corrective SIP revision by that deadline.
But the FIP proposal put the public on
notice, with sufficient specificity, as to
EPA’s plan. In any event, any FIP is
necessarily dependent on other factors,
including state actions. That is, under
any circumstances, whether EPA
finalizes any proposed FIP depends on
whether (i) if the proposed FIP is based
on the failure of a state to make a
required submittal, the state makes the
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required submittal; or (ii) if the
proposed FIP is based on EPA’s
disapproval of a SIP revision, whether
the state submits a revised SIP revision
that EPA then approves.
Most broadly, commenters’
approach—which is that EPA cannot
propose a FIP in concert with a SIP call,
but instead must proceed in seriatim by
completing the SIP call first and then
proposing the FIP—would result in
lengthy delays in the establishment of a
permitting authority to process GHGemitting sources’ PSD permit
applications. As a result, commenters’
approach could well cause delays in
these sources’ ability to undertake
construction and modification projects.
We include related comments and
responses in the Response to Comments
document.14
C. Substance of GHG PSD FIP
In the FIP proposal, we stated:
The proposed FIP constitutes the EPA
regulations found in 40 CFR 52.21, including
the PSD applicability provisions, with a
limitation to assure that, strictly for purposes
of this rulemaking, the FIP applies only to
GHGs. Under the PSD applicability
provisions in 40 CFR 52.21(b)(50), the PSD
program applies to sources that emit the
requisite amounts of any ‘‘regulated NSR
pollutant[s],’’ including any air pollutant
‘‘subject to regulation.’’ However, in states for
which EPA would promulgate a FIP to apply
PSD to GHG-emitting pollutants, the
approved SIP already applies PSD to other air
pollutants. To appropriately limit the scope
of the FIP, EPA proposes in this action to
amend 40 CFR 52.21(b)(50) to limit the
applicability provision to GHGs.
We propose this FIP because it would, to
the greatest extent possible, mirror EPA
regulations (as well as those of most of the
states). In addition, this FIP would readily
incorporate the phase-in approach for PSD
applicability to GHG sources that EPA has
developed in the Tailoring Rule and expects
to develop further through additional
rulemaking. As explained in the Tailoring
Rule, incorporating this phase-in approach—
including Steps 1 and 2 of the phase-in as
promulgated in the Tailoring Rule—can be
most readily accomplished through
interpretation of the terms in the definition
‘‘regulated NSR pollutant,’’ including the
term ‘‘subject to regulation.’’
In accordance with the Tailoring Rule,
* * * the FIP would apply in Step 1 of the
phase-in approach only to ‘‘anyway sources’’
(that is, sources undertaking construction or
modification projects that are required to
apply for PSD permits anyway due to their
non-GHG emissions and that emit GHGs in
the amount of at least 75,000 tpy on a CO2e
basis) and would apply in Step 2 of the
phase-in approach to both ‘‘anyway sources’’
and sources that meet the 100,000/75,000-tpy
threshold (that is, (i) sources that newly
14 The Response to Comments document for the
FIP can be found in the docket for this rulemaking.
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construct and would not be subject to PSD
on account of their non-GHG emissions, but
that emit GHGs in the amount of at least
100,000 tpy CO2e, and (ii) existing sources
that emit GHGs in the amount of at least
100,000 tpy CO2e, that undertake
modifications that would not trigger PSD on
the basis of their non-GHG emissions, but
that increase GHGs by at least 75,000 tpy
CO2e).
Under the FIP, with respect to permits for
‘‘anyway sources,’’ EPA will be responsible
for acting on permit applications for only the
GHG portion of the permit, and the state will
retain responsibility for the rest of the permit.
Likewise, with respect to permits for sources
that meet the 100,000/75,000-tpy threshold,
our preferred approach—for reasons of
consistency—is that EPA will be responsible
for acting on permit applications for only the
GHG portion of the permit, that the state
permitting authorities will be responsible for
the non-GHG portion of the permit, and EPA
will coordinate with the state permitting
authority as needed in order to fully cover
any non-GHG emissions that, for example,
are subject to BACT because they exceed the
significance levels. We recognize that
questions may arise as to whether the state
permitting authorities have authority to
permit non-GHG emissions; as a result, we
solicit comment on whether EPA should also
be the permitting authority for the non-GHG
portion of the permit for these latter sources.
We propose that the FIP consist of the
regulatory provisions included in 40 CFR
52.21, except that the applicability provision
would include a limitation so that it applies
for purposes of this rulemaking only to
GHGs.
75 FR 53889/3 to 53,890/1.
We are finalizing the FIP as we
described it in the proposal, for the
same reasons that we indicated in the
proposal, all as quoted earlier in this
preamble.
State, industry, and environmental
commenters questioned how having
EPA issue the GHG portions of a permit
while allowing states under a FIP to
continue to be responsible for issuing
the non-GHG portions of a PSD permit
will work in practice. Commenters
raised concerns about the potential for
a source to be ‘‘faced with conflicting
requirements and the need to mediate
among permit engineers making BACT
decisions.’’
We appreciate the commenters’
concern. We well recognize that
dividing permitting responsibilities
between two authorities—EPA for GHGs
and the state for all other pollutants—
will require close coordination between
the two authorities to avoid duplication,
conflicting determinations, and delays.
We note that this situation is not
without precedent. In many instances,
EPA has been the PSD permitting
authority but the state has accepted a
delegation for parts of the PSD program,
so that a source has had to go to both
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the state and EPA for its permit. In
addition, all nonattainment areas in the
nation are in attainment or are
unclassifiable for at least one pollutant,
so that every nonattainment area is also
a PSD area. In some of these areas, the
state is the permitting authority for
nonattainment new source review (NSR)
and EPA is the permitting authority for
PSD. As a result, there are instances in
which a new or modifying source in
such an area has needed a
nonattainment NSR permit from the
state and a PSD permit from EPA.
EPA is working expeditiously to
develop recommended approaches for
EPA regions and affected states to use in
addressing the shared responsibility of
issuing PSD permits for GHG-emitting
sources. In addition, as discussed
below, we intend for the GHG PSD FIP
to remain in place only as long as
necessary for states’ SIPs to be
approved. Moreover, in this interim
period, we intend to delegate permitting
responsibility to those states that are
able to implement it and that request it.
States that request and receive a
delegation will be responsible for
issuing both the GHG part and the nonGHG part of the permit, and that will
moot commenters’ concerns about split
permitting. EPA’s most recent
information is that of the seven states
for which EPA is promulgating a FIP,
four states have indicated to EPA that
they intend to seek a delegation
(Arizona, Idaho, Kansas, and Oregon)
and a fifth has indicated that it is
considering seeking a delegation
(Arkansas).15
In addition, beginning on July 1, 2011,
those states without authority to
regulate GHG may not be able to issue
PSD permits for non-GHG pollutants to
sources that are major only because of
their GHG emissions. This is because
under the state’s approved SIP, these
sources are not major sources. In this
circumstance, EPA will also be the PSD
permitting authority for the non-GHG
pollutants, but, as discussed in detail
earlier in this preamble, EPA intends to
work closely with each state to develop
mutually acceptable approaches—
including delegation of this authority
where possible—to maximize the
opportunity for the state to assume as
much of the permitting responsibilities
as possible.
Finally, we are providing regulatory
language to address Oregon. Oregon’s
EPA-approved PSD SIP differs from the
federal program with respect to which
sources are subject to PSD. EPA is
promulgating a FIP for Oregon that is
consistent with the intent of the
15 McCarthy
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82251
Tailoring Rule and that accommodates
the difference in the Oregon program.
That is, as of January 2, 2011, sources
in Oregon that are currently required to
get PSD permits under the approved SIP
will be subject to review under the FIP
for greenhouse gases if they exceed the
Tailoring Rule thresholds. As of July 1,
2011, the determination of which
sources will be subject to PSD review
for greenhouse gases under the FIP will
be consistent with how applicability is
determined under the current Oregon
SIP for other regulated NSR pollutants.
D. Period for GHG PSD FIP To Remain
in Place
In the FIP proposal, we stated our
intention to leave any promulgated FIP
in place for as short a period as possible,
and to process any corrective SIP
revision submitted by the state to fulfill
the requirements of the SIP call as
expeditiously as possible. Specifically,
we stated:
After we have promulgated a FIP, it must
remain in place until the state submits a SIP
revision and we approve that SIP revision.
CAA section 110(c)(1). Under the present
circumstances, we will act on a SIP revision
to apply the PSD program to GHG sources as
quickly as possible. Upon request of the state,
we will parallel-process the SIP submittal.
That is, if the state submits to us the draft SIP
submittal for which the state intends to hold
a hearing, we will propose the draft SIP
submittal for approval and open a comment
period during the same time as the state
hearing. If the SIP submittal that the state
ultimately submits to us is substantially
similar to the draft SIP submittal, we will
proceed to take final action without a further
proposal or comment period. If we approve
such a SIP revision, we will at the same time
rescind the FIP.
75 FR 53889/2–3.
We continue to have these same
intentions. Thus, we reaffirm our
intention to leave the GHG PSD FIP in
place only as long as is necessary for the
state to submit and for EPA to approve
a SIP revision that includes PSD
permitting for GHG-emitting sources. As
discussed in more detail later in this
preamble, EPA continues to believe that
the states should remain the primary
permitting authority.
E. Primacy of SIP Process
In the FIP proposal we stated,
This proposal [to promulgate a FIP] is
secondary to our overarching goal, which is
to assure that in every instance, it will be the
state that will be that permitting authority.
EPA continues to recognize that the states are
best suited to the task of permitting because
they and their sources have experience
working together in the state PSD program to
process permit applications. EPA seeks to
remain solely in its primary role of providing
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guidance and acting as a resource for the
states as they make the various required
permitting decisions for GHG emissions.
Accordingly, beginning immediately we
intend to work closely with the states—as we
have already begun to do since earlier in the
year—to help them promptly develop and
submit to us their corrective SIP revisions
that extend their PSD program to GHGemitting sources. Moreover, we intend to
promptly act on their SIP submittals. Again,
EPA’s goal is to have each and every affected
state have in place the necessary permitting
authorities by the time businesses seeking
construction permits need to have their
applications processed and the permits
issued—and to achieve that outcome by
means of engaging with the states directly
through a concerted process of consultation
and support.
EPA is taking up the additional task of
proposing this FIP and the companion SIP
Call action only because the Agency believes
it is compelled to do so by the need to assure
businesses, to the maximum extent possible
and as promptly as possible, that a permitting
authority is available to process PSD permit
applications for GHG-emitting sources once
they become subject to PSD requirements on
January 2, 2011.
In order to provide that assurance, we are
obligated to recognize, as both states and the
regulated community already do, that there
may be circumstances in which states are
simply unable to develop and submit those
SIP revisions by January 2, 2011, or for some
period of time beyond that date. As a result,
absent further action by EPA, those states’
affected sources confront the risk that they
may have to put on hold their plans to
construct or modify, a risk that may have
adverse consequences for the economy.
Given these exigent circumstances, EPA
proposes this plan, within the limits of our
power, with the intent to make a back-up
permitting authority available—and to send a
signal of assurance expeditiously in order to
reduce uncertainty and thus facilitate
businesses’ planning. Within the design of
the CAA, it is EPA that must fill that role of
back-up permitting authority. This FIP and
the companion SIP Call action fulfill the
CAA requirements to establish EPA in that
role.
At the same time, we propose these actions
with the intent that states retain as much
discretion as possible in the hand of the
states. In the SIP Call rulemaking, EPA
proposes that states may choose the deadline
they consider reasonable for submission of
their corrective SIP revision. If, under CAA
requirements, we are compelled to
promulgate a FIP, we invite the affected state
to accept a delegation of authority to
implement that FIP, so that it will still be the
state that processes the permit applications,
albeit operating under federal law. In
addition, if we are compelled to issue a FIP,
we intend to continue to work closely with
the state to assist in developing and
submitting for approval its corrective SIP
revision, so as to minimize the amount of
time that the FIP must remain in place.
75 FR at 53890/1–2.
In this rulemaking, we continue to
have the same intentions and for the
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same reasons. Thus, we continue to
believe that this action is necessary to
ensure that sources in states with
inadequate SIPs can obtain the
necessary PSD permits for their GHG
emissions. We have worked closely with
states to establish reasonable deadlines
for submitting revised SIPs and are
finalizing this FIP based on deadlines
agreed to by the affected states. We will
continue to work with states, as we have
done throughout the rulemaking
process, to assist in development and
expedite review of revised SIPs. In the
meantime, however, this FIP is
necessary for the seven states identified
here in order to provide a permitting
authority until an adequate SIP is
submitted and approved.
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866—Regulatory
Planning and Review
Under Executive Order (EO) 12866
(58 FR 51735, October 4, 1993), this
action is a ‘‘significant regulatory action’’
because it raises novel legal or policy
issues. Accordingly, EPA submitted this
action to the Office of Management and
Budget (OMB) for review under EO
12866 and any changes made in
response to OMB recommendations
have been documented in the docket for
this action.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. OMB has
previously approved the information
collection requirements contained in the
existing regulations for PSD (see, e.g., 40
CFR 52.21) and title V (see 40 CFR parts
70 and 71) under the provisions of the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB
control number 2060–0003 and OMB
control number 2060–0336 respectively.
The OMB control numbers for EPA’s
regulations in 40 CFR are listed in 40
CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of this notice on small entities, small
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entity is defined as: (1) A small business
that is a small industrial entity as
defined in the U.S. Small Business
Administration (SBA) size standards
(see 13 CFR 121.201); (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district, or special district with a
population of less than 50,000; or (3) a
small organization that is any not-forprofit enterprise that is independently
owned and operated and is not
dominant in its field.
Although this rule would lead to
federal permitting requirements for
certain sources, those sources are large
emitters of GHGs and tend to be large
sources. After considering the economic
impacts of this rule on small entities, I
certify that this action will not have a
significant economic impact on a
substantial number of small entities.
This final rule will not impose any
requirements on 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 section. The
action imposes no enforceable duty on
any state, local or tribal governments or
the private sector. This action merely
prescribes EPA’s action for states that
have not met their existing obligation
for PSD SIP submittal. Thus, this rule is
not subject to the requirements of
sections 202 or 205 of UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. This
action merely prescribes EPA’s action
for states that have not met their
existing obligation for PSD SIP
submittal.
E. Executive Order 13132—Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This action
merely prescribes EPA’s action for states
that have not met their existing
obligation for GHG PSD SIP submittal.
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
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specifically solicited comment on the
proposal for this action from state and
local officials.
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This action does not impose a FIP
in any tribal area. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets E.O. 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 E.O. has the potential to influence
the regulation. This action is not subject
to E.O. 13045 because it merely
prescribes EPA’s action for states that do
not meet their existing obligation for
PSD SIP submittal.
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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. This
action merely prescribes EPA’s action
for states that have not met their
existing obligation for PSD SIP
submittal.
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 rulemaking does not involve
technical standards. Therefore, EPA did
not consider the use of any voluntary
consensus standards.
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J. Executive Order 12898—Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the U.S.
EPA has determined that this final
rule will not have disproportionately
high and adverse human health or
environmental effects on minority or
low-income populations because it does
not affect the level of protection
provided to human health or the
environment. This rule merely
prescribes EPA’s action for states that
have not met their existing obligation
for PSD SIP submittal.
K. Determination Under Section 307(d)
Pursuant to section 307(d)(1)(B) of the
CAA, this action is subject to the
provisions of section 307(d). Section
307(d)(1)(B) provides that the provisions
of section 307(d) apply to ‘‘the
promulgation or revision of an
implementation plan by the
Administrator under section 110(c) of
this Act.’’
L. 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 does not constitute a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
Therefore, this action will be effective
December 30, 2010.
V. Judicial Review
Section 307(b)(1) of the CAA specifies
which Federal Courts of Appeal have
jurisdiction to hear petitions for review
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82253
of which 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 is nationally applicable
under CAA section 307(b)(1). The
circumstances that have led to this
rulemaking are national in scope and
are substantially the same for each
affected state. They include EPA’s
promulgation of nationally applicable
GHG requirements that, in conjunction
with the operation of the CAA PSD
provisions, have resulted in GHGemitting sources becoming subject to
PSD; as well as EPA’s finding of
substantial SIP inadequacy, imposition
of a SIP call, and establishment of a
deadline for SIP submittal. Moreover, in
this rule, EPA is applying uniform
principles for promulgating the FIP for
each of the affected states, concerning,
e.g., timing (that is, that EPA is
promulgating the FIP for each affected
state immediately) and scope (that is,
that EPA is applying the FIP for GHGemitting sources). The FIP for each
affected state has substantially the same,
if not identical, terms. This rulemaking
action is supported by a single
administrative record, and does not
involve factual questions unique to the
different affected states. In addition, this
rule applies to multiple States across the
country, and in several judicial circuits.
For similar reasons, this rule is based
on determinations of nationwide scope
or effect. For each of the seven affected
States, EPA is determining that it is
appropriate to promulgate the FIP
immediately and to apply it to GHGemitting sources, but not other sources.
These determinations are the same for
each of the states. The other provisions
of the FIP are substantially the same, if
not identical, for each affected state.
Moreover, EPA is making these
determinations and promulgating this
action within the context of nationwide
rulemakings and interpretation of the
applicable CAA provisions, as noted
above.
Thus, under section 307(b)(1) of the
Act, judicial review of this final action
is available by filing of a petition for
review in the U.S. Court of Appeals for
the District of Columbia Circuit by
February 28, 2011. Any such judicial
E:\FR\FM\30DER1.SGM
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82254
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
srobinson on DSKHWCL6B1PROD with RULES
*
*
*
*
*
(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
VerDate Mar<15>2010
17:29 Dec 29, 2010
Jkt 223001
§ 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]
BILLING CODE 6560–50–P
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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:
E:\FR\FM\30DER1.SGM
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]]>Agencies
[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82246-82254]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32784]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2010-0107; FRL-9245-3]
RIN 2060-AQ45
Action To Ensure Authority To Issue Permits Under the Prevention
of Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is establishing a federal implementation plan (FIP) to
apply in each of seven states that have not submitted by their
established deadline a corrective state implementation plan (SIP)
revision to apply their Clean Air Act (CAA or Act) Prevention of
Significant Deterioration (PSD) program to sources of greenhouse gases
(GHGs). This action will ensure that a permitting authority--EPA--is
available in these states as of January 2, 2011, when PSD becomes
applicable to GHG-emitting sources, to issue preconstruction PSD
permits and thereby facilitate construction or expansion. The seven
states are: Arizona: Both Pinal County and Rest of State (excluding
Maricopa County, Pima County, and Indian Country), Arkansas, Florida,
Idaho, Kansas, Oregon, and Wyoming. This action is related to EPA's
recently promulgated final rule, published on December 13, 2010, which
we call the GHG PSD SIP call, and in which EPA made a finding of
substantial inadequacy and issued a SIP call for these seven states and
several others on grounds that their SIPs do not apply the PSD program
to GHG-emitting sources.
DATES: This action is effective on December 30, 2010.
ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2010-0107. All documents in the docket are
listed in the https://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in https://www.regulations.gov or in hard copy at the
U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Cheryl Vetter, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-4391; fax number: (919) 541-5509; e-mail
address: vetter.cheryl@epa.gov.
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 Vermont
Boston, MA 02109-
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 Mississippi, North
Section, Air, Carolina, South
Pesticides and Carolina, and
Toxics Management Tennessee.
Division, EPA
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.
------------------------------------------------------------------------
[[Page 82247]]
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities affected by this rule include the seven state and local
permitting authorities \1\ identified by EPA to have not submitted by
their deadline a SIP revision that would apply PSD requirements to GHG-
emitting sources. In the GHG PSD SIP call,\2\ EPA determined that these
seven states have SIPs that are substantially inadequate to achieve CAA
requirements because their PSD programs do not apply to GHG-emitting
sources, and EPA established that deadline.
---------------------------------------------------------------------------
\1\ For convenience, we refer to ``states'' in this rulemaking
to collectively mean states and local permitting authorities.
\2\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Final rule, 75 FR 77698 (December 13, 2010).
---------------------------------------------------------------------------
Entities potentially affected by this rule also include sources in
all industry groups, which have a direct obligation under the CAA to
obtain a PSD permit for GHGs for projects that meet the applicability
thresholds set forth in the Tailoring Rule.\3\ This independent
obligation on sources is specific to PSD and derives from CAA section
165(a). Any source that is subject to a state PSD air permitting
regulation not structured to apply to GHG-emitting sources will rely on
this rule to obtain a permit that contains emission limitations that
conform to requirements under CAA section 165(a). The majority of
entities potentially affected by this action are expected to be in the
following groups:
---------------------------------------------------------------------------
\3\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3,
2010).
------------------------------------------------------------------------
Industry group NAICS \a\
------------------------------------------------------------------------
Utilities (electric, natural gas, other 2211, 2212, 2213.
systems).
Manufacturing (food, beverages, 311, 312, 313, 314, 315, 316.
tobacco, textiles, leather).
Wood product, paper manufacturing...... 321, 322.
Petroleum and coal products 32411, 32412, 32419.
manufacturing.
Chemical manufacturing................. 3251, 3252, 3253, 3254, 3255,
3256, 3259.
Rubber product manufacturing........... 3261, 3262.
Miscellaneous chemical products........ 32552, 32592, 32591, 325182,
32551.
Nonmetallic mineral product 3271, 3272, 3273, 3274, 3279.
manufacturing.
Primary and fabricated metal 3311, 3312, 3313, 3314, 3315,
manufacturing. 3321, 3322, 3323, 3324, 3325,
3326, 3327, 3328, 3329.
Machinery manufacturing................ 3331, 3332, 3333, 3334, 3335,
3336, 3339.
Computer and electronic products 3341, 3342, 3343, 3344, 3345,
manufacturing. 4446.
Electrical equipment, appliance, and 3351, 3352, 3353, 3359.
component manufacturing.
Transportation equipment manufacturing. 3361, 3362, 3363, 3364, 3365,
3366, 3366, 3369.
Furniture and related product 3371, 3372, 3379.
manufacturing.
Miscellaneous manufacturing............ 3391, 3399.
Waste management and remediation....... 5622, 5629.
Hospitals/nursing and residential care 6221, 6231, 6232, 6233, 6239.
facilities.
Personal and laundry services.......... 8122, 8123.
Residential/private households......... 8141.
Non-residential (commercial)........... Not available. Codes only exist
for private households,
construction and leasing/sales
industries.
------------------------------------------------------------------------
\a\ North American Industry Classification System.
B. How is the preamble organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. How is the preamble organized?
II. Overview of Rulemaking
III. Final Action and Response to Comments
A. Authority To Promulgate a FIP
B. Timing of GHG PSD FIP
C. Substance of GHG PSD FIP
D. Period for GHG PSD FIP To Remain in Place
E. Primacy of SIP Process
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform 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 Risks and Safety Risks
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
L. Congressional Review Act
V. Judicial Review
VI. Statutory Authority
II. Overview of Rulemaking
In this rulemaking, EPA is establishing a FIP, which we call the
GHG PSD FIP, or simply, the FIP, to apply in each of seven states that
have not submitted by December 22, 2010, a corrective SIP revision to
apply their CAA PSD program to sources of GHGs. This is the deadline
EPA established after the affected states indicated that they would not
object to it, to ensure that a permitting authority would be in place
as of January 2, 2011 to facilitate issuance of PSD permits for
construction and modification of sources.
This preamble should be read in conjunction with the preamble for
the proposed rulemaking for this action, which we call the GHG PSD FIP
proposal or the FIP proposal; \4\ and the SIP call rulemaking that is
associated with this rulemaking, including (i) the proposed SIP call
rulemaking, which we call the GHG PSD SIP call proposal or the SIP call
proposal, and which accompanied the FIP proposal,\5\ and (ii) the final
SIP call rulemaking, which we call the GHG PSD SIP call or the SIP
call. Background information for this
[[Page 82248]]
rulemaking is found in those rulemakings and in the rulemakings
referenced therein and will not be reiterated here.
---------------------------------------------------------------------------
\4\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan--Proposed
rule, 75 FR 53883 (September 2, 2010).
\5\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Proposed rule, 75 FR 53892 (September 2, 2010).
---------------------------------------------------------------------------
By notices dated September 2, 2010, EPA published as companion
actions the SIP call proposal and the FIP proposal. In the SIP call
proposal, EPA proposed to find that 13 states with EPA-approved SIP PSD
programs are substantially inadequate to meet CAA requirements because
they do not appear to apply PSD requirements to GHG-emitting sources.
For each of these states, EPA proposed to require the state (through a
SIP call) to revise its SIP as necessary to correct such inadequacies.
In the FIP proposal, EPA proposed a FIP to apply in any state that is
unable to submit, by its deadline, a corrective SIP revision to apply
the PSD program to sources of GHGs. The FIP would provide authority to
EPA to issue PSD permits for construction or modification of
appropriate GHG sources in the state.
On December 1, 2010, EPA promulgated the GHG PSD SIP call, and EPA
published it by notice dated December 13, 2010.\6\ In the SIP call, EPA
finalized its finding that the SIPs of 13 states (comprising 15 state
and local programs) are substantially inadequate to meet CAA
requirements because they do not apply PSD requirements to GHG-emitting
sources. In addition, EPA finalized a SIP call for each of these
states, which required the state to revise its SIP as necessary to
correct such inadequacies. Further, EPA established a deadline for each
state to submit its corrective SIP revision. These deadlines, which
differed among the states, ranged from December 22, 2010, to December
1, 2011.
---------------------------------------------------------------------------
\6\ Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Final Rule, 75 FR 77698 (December 13, 2010).
---------------------------------------------------------------------------
Seven states received a SIP submittal deadline of December 22,
2010, based on information received from each state during the public
comment period that they would not object to this deadline. These seven
states are: (1) Arizona: Both Pinal County and Rest of State (excluding
Maricopa County, Pima County, and Indian Country); \7\ (2) Arkansas;
(3) Florida; (4) Idaho; (5) Kansas; (6) Oregon; and (7) Wyoming.
---------------------------------------------------------------------------
\7\ EPA issued to Arizona a separate finding of substantial
inadequacy, SIP call, and deadline for SIP submittal for each of
Pinal County and for the rest of the state (excluding Maricopa
County, Pima County, and Indian Country).
---------------------------------------------------------------------------
On December 23, 2010, EPA issued a finding under CAA section
110(c)(1)(A) that each of the seven states ``failed to make [the]
required submission'' of the corrective SIP call-mandated SIP revision
by its December 22, 2010 deadline. EPA notified each state of the
finding by letter. Those letters are located in the docket for this
rulemaking.
III. Final Action and Response to Comments
A. Authority To Promulgate a FIP
In this rulemaking, EPA is finalizing the GHG PSD FIP as proposed
for each of the seven states: (1) Arizona: Both Pinal County and Rest
of State (excluding Maricopa County Pima County, and Indian Country);
\8\ (2) Arkansas; (3) Florida; (4) Idaho; (5) Kansas; (6) Oregon; and
(7) Wyoming.
---------------------------------------------------------------------------
\8\ In this rulemaking, EPA is finalizing for Arizona a separate
GHG PSD FIP for each of Pinal County and for the rest of the state
(excluding Maricopa County, Pima County, and Indian Country).
---------------------------------------------------------------------------
The CAA authority for EPA to promulgate a FIP is found in CAA
section 110(c)(1), which provides--
The Administrator shall promulgate a Federal implementation plan
at any time within 2 years after the Administrator--(A) finds that a
State has failed to make a required submission * * * unless the
State corrects the deficiency, and [EPA] approves the plan or plan
revision, before the Administrator promulgates such [FIP].
As noted earlier in this preamble, on December 23, 2010, EPA issued
a finding that each of the seven states affected by this rule ``failed
to make [the] required submission'' of the corrective SIP call-mandated
SIP revision by its December 22, 2010 deadline. Accordingly, under CAA
section 110(c)(1), EPA is required to promulgate a FIP for each of the
states.
It should be noted that EPA specifically proposed the FIP for six
of the seven states affected by this rulemaking, all except for
Wyoming. EPA did not include Wyoming among the states for which EPA
specifically proposed the SIP call, and, as a result, did not include
Wyoming among the states for which EPA specifically proposed the FIP.
However, in the proposed SIP call, EPA stated that it was soliciting
comment on all the other states, and, if EPA received information
indicating that another state should receive the SIP call, then EPA
would, without a supplemental or further proposal, issue a final SIP
call for that other state.\9\ Similarly, EPA stated in the FIP proposal
that if EPA issued a SIP call for that other state, and the other state
did not submit a corrective SIP revision by its deadline, then, EPA
would finalize the FIP for that other state, too.\10\
---------------------------------------------------------------------------
\9\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Proposed rule, 75 FR 53,895-6 (September 2, 2010).
\10\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan--Proposed
rule, 75 FR 53,886 (September 2, 2010).
---------------------------------------------------------------------------
We reiterate that each of the seven states affected by this
rulemaking specifically indicated to EPA that it preferred that EPA
promulgate a FIP to take effect by January 2, 2011--when sources in the
state become subject to PSD--rather than EPA not promulgate a FIP until
a later time. This is because each state sought to assure that, as of
January 2, 2011, a permitting authority for GHG-emitting sources would
be in place in the state. These states made this choice by indicating
that they did not object to EPA establishing a SIP submittal date of
December 22, 2010, when EPA made clear in the proposed SIP call and FIP
that if the state did not submit the required SIP revision by that
date, then EPA would promulgate the FIP the next day. 75 FR at 53904/2
(proposed SIP call); id. at 53889/2 (proposed FIP). For the most part,
the remaining states that were subject to the SIP call indicated a
later SIP submittal date, but they believe that although this will mean
a short delay in the availability of a permitting authority for GHG-
emitting sources in their state, that delay will not adversely affect
their sources. EPA regional and headquarters officials conferred
extensively with state officials concerning the states' progress and
plans and with the National Association of Clean Air Agencies.\11\
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\11\ Declaration of Gina McCarthy, ]]4-5, pp. 3-4, ``EPA's
Response To Motions To Stay,'' Coalition for Responsible Regulation
v. EPA, No. 09-1322 (and consolidated cases) (McCarthy Declaration).
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In this rulemaking, EPA is not taking final action to promulgate a
FIP for any of the other states which EPA included in the FIP proposal.
This is because for each of the other states, either EPA did not
finalize the SIP call or EPA did finalize the SIP call but established
a SIP submittal deadline that has not yet arrived. As a result, EPA has
not issued a finding of failure to submit the required SIP revision for
any of these other states. It continues to be EPA's intent that if any
of these other states does not submit the required SIP revision by its
deadline, then EPA will immediately issue a finding of failure to
submit a required SIP submission and immediately promulgate a GHG PSD
FIP for that state.
In comments received, some commenters stated, ``Remarkably, EPA
states that it will also directly promulgate a SIP call and FIP for any
[[Page 82249]]
states it has inadvertently omitted from its notice of proposed
rulemaking.'' Although the commenters do not elaborate upon this
statement, they seem to imply that it would be improper for EPA to
finalize a FIP for such states because we did not provide adequate
notice and opportunity for comment.
The only state for which this comment may be relevant is Wyoming,
as noted earlier in this preamble. We disagree with the commenters. In
the proposal, we listed the states with approved SIP PSD programs for
which we were not proposing a finding of substantial inadequacy and a
SIP call, and so were not proposing a FIP. But we went on to
specifically solicit comment on whether each of those states merited a
finding, SIP call,\12\ and, ultimately, a FIP; and we included
citations to the relevant SIP provisions.\13\ Moreover, we generally
described the circumstances under which those states may merit a FIP.
As a result, commenters had adequate notice that EPA could ultimately
finalize a FIP for those states if and when they missed their SIP
submittal deadlines, and they had full opportunity to comment if they
had relevant views or information. This was discussed in greater detail
in the SIP call rulemaking 75 FR at 77715/6.
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\12\ During the comment period, Wyoming did send information
indicating that, in Wyoming's view, Wyoming did not have legal
authority to apply PSD to GHG-emitting sources and therefore Wyoming
should be included in the SIP call. A Wyoming environmental group
provided comments during the comment period saying that it believed
Wyoming did have legal authority to apply PSD to GHG-emitting
sources. Accordingly, it is clear that the solicitation of comment
was sufficient notice to the public. More detailed information
regarding Wyoming and other states covered in this rulemaking may be
found in the ``Supplemental Information Document for Final Action to
Ensure Authority to Issue Permits under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Substantial Inadequacy and SIP Call,'' located
in the docket for this rulemaking.
\13\ Thus, commenters are incorrect in characterizing EPA as
having ``inadvertently omitted [Wyoming] from its notice of proposed
rulemaking.''
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B. Timing of GHG PSD FIP
In the GHG PSD FIP proposal, we stated:
If any of the states for which we issue the SIP Call does not
meet its SIP submittal deadline, we will immediately issue a finding
of failure to submit a required SIP submission, under CAA section
110(c)(1)(A), and immediately thereafter promulgate a FIP for the
state. This timing for FIP promulgation is authorized under CAA
section 110(c)(1), which authorizes us to promulgate a FIP ``at any
time within 2 years after'' finding a failure to submit a required
SIP submission. We intend to take these actions immediately in order
to minimize any period of time during which larger-emitting sources
may be under an obligation to obtain PSD permits for their GHGs when
they construct or modify, but no permitting authority is authorized
to issue those permits.
75 FR at 53,889/2.
In this final rulemaking, we are proceeding in the same manner that
we proposed, and for the same reasons. That is, we are exercising our
discretion to promulgate the FIP for each of the seven affected states
``immediately in order to minimize any period of time during which
larger-emitting sources may be under an obligation to obtain PSD
permits for their GHGs when they construct or modify, but no permitting
authority is authorized to issue those permits.'' 75 FR at 53889/2. We
believe that acting immediately is in the best interests of the states
and the regulated community.
EPA received comments that the process EPA has employed in this
action, which was to propose the FIP as a companion rule to the
proposed SIP call, and then to finalize the FIP immediately after
making a finding that a state has not submitted the required SIP
revision by its deadline, ``is not how CAA section 110 works or how
Congress intended it to work.'' The commenter added that--
[O]nly after a state has * * * failed to [submit a SIP revision]
after an applicable period as specified in the CAA or EPA
regulations * * * and after EPA has made a determination that the
SIP revision is deficient in one or more respects, may the Agency
step in to propose a FIP rule. And only after taking that step could
EPA then proceed * * * [to take final action on the FIP.]
Notwithstanding EPA's strained and out-of-context emphasis on the
isolated sentence fragment, ``at any time within,'' the very fact
that the CAA affords EPA up to two full years in which to complete
the cooperative task of considering whether a FIP is needed and how
such a plan should be fashioned, and the corollary fact that the Act
does not mandate any federal takeover in less than two years,
militate against EPA's approach here to FIP rulemaking. In
particular, those facts undermine EPA's assumption that it need not
take the time to develop a proposed plan specifically directed at
remedying identified deficiencies in a given state submission, and
to give states and the regulated community a meaningful opportunity
to comment on a proposed FIP that has been specifically developed to
address the individual needs and circumstances of such a state.
(Emphasis in original.)
EPA disagrees with these comments. As we stated in the proposed
rule, CAA section 110(c)(1)(A) authorizes EPA to promulgate a FIP ``at
any time within 2 years after'' finding a failure to submit a required
SIP revision. We are promulgating the FIP immediately because we wish
to minimize any disruption in permitting for the larger GHG-emitting
sources and we are doing so after consultation with the affected
states. The seven states that are the subject of this rulemaking told
EPA that they would not object to the promulgation of a FIP at the
earliest possible deadline, or December 22, 2010, because that would
ensure a permitting authority would be in place as of January 2, 2011.
Without the FIP, these states would be without an approved program to
issue PSD permits for GHG-emitting sources until the states submit, and
EPA approves, a SIP revision. The FIP provides sources in these states
an immediate mechanism to obtain required permits for construction and
modification until the revised SIPs are approved.
As for commenters' analysis of CAA section 110(c), that provision,
by its terms, imposes no constraints on when EPA may propose a FIP.
This stands in contrast to other CAA provisions that do impose
requirements for the timing of proposals. See CAA sections
109(a)(1)(A), 111(b)(1)(B). In light of the lack of constraints in CAA
section 110(c), EPA was free to propose the FIP at the same time that
EPA proposed the SIP call. We do not agree that the overall construct
of CAA section 110 imposes the implicit constraints that the commenter
identifies.
Instead, what is important is that for each of the 13 states for
which EPA specifically proposed the FIP, which were the same as the
ones for which EPA proposed the SIP call, the public had adequate
notice of the circumstances under which EPA proposed that the state
would become subject to the FIP. Those circumstances were that if EPA
finalized the SIP call, as proposed, for the state, and if the state
did not submit a SIP revision applying its PSD program to GHG-emitting
sources by the deadline, EPA would establish a FIP for that state. In
fact, EPA did finalize the SIP call for all but one of those 13 states
and is now finalizing the FIP for six of them. Further, EPA received
comments on the proposed FIP from several states and/or industries
located in states for which EPA proposed the FIP, which indicates that
the FIP proposal provided adequate notice. See, e.g., comments
identified in the rulemaking docket as document numbers 0084.1 (Texas),
0055.1 (Arkansas), 0066.1 (Texas Industry Project), and 0109.1
(National Mining Association).
Although for Wyoming EPA did not specifically propose the SIP call
or FIP, the public had the same opportunity to
[[Page 82250]]
comment on the prospect of a FIP for Wyoming as the public did for the
states for which EPA did specifically propose the FIP. This is because
EPA solicited comment on whether to issue a SIP call for Wyoming (along
with other states with approved PSD programs); made clear that if EPA
received certain information, EPA would finalize the SIP call for
Wyoming; and, further, made clear that if EPA issued a SIP call for
Wyoming and Wyoming did not submit the required SIP by Wyoming's
deadline, then EPA would finalize the FIP. In fact, Wyoming commented
on the FIP. See comment identified in the rulemaking docket as document
number 0079.1.
Moreover, EPA was clear that for each state subject to the SIP call
that did not submit the required SIP revision by its SIP submittal
deadline, EPA would immediately make a finding of failure to submit and
immediately promulgate a FIP. EPA explained that this approach was
needed to assure the availability of a permitting authority for sources
in the state.
Finally, each of the states and the public in general had adequate
notice of the terms of the FIP as it would apply in any state.
Specifically, EPA indicated that the FIP would apply PSD to GHG-
emitting sources at the Tailoring Rule thresholds.
Therefore, the FIP proposal was clear as to the circumstances under
which EPA proposed to promulgate a FIP, the timing for the FIP, and the
terms of the FIP. Moreover, each of those three things applied to each
state that would become subject to the SIP call. Accordingly, the FIP
proposal did, in fact, ``give states and the regulated community a
meaningful opportunity to comment on a proposed FIP that has been
specifically developed to address the individual needs and
circumstances of such a state,'' as the commenter argues the FIP
proposal needed to do.
Several commenters raised an additional objection, which was that
in their view, EPA failed to comply with the requirements of CAA
section 307(d)(3) that (i) the proposed FIP include a summary of ``the
factual data on which the proposed rule is based'' and ``the major
legal interpretations and policy considerations underlying the proposed
rule''; and (ii) ``[a]ll data, information, and documents * * * on
which the proposed rule relies shall be included in the docket on the
date of publication of the proposed rule.'' (Emphasis added by one of
these commenters.) One of these commenters explained that (a) in the
SIP call proposal, EPA had made a detailed request that states provide
information as to whether their state law authorized the application of
PSD to GHG-emitting sources; (b) this detailed request demonstrated
that the proposal did not establish the legal basis for the SIP call;
and (c) as a result, the FIP proposal did not include ``information
that is essential to determining whether a FIP for a given state is
even appropriate and justified.'' (Emphasis in original.) This
commenter added--
Only after EPA has received such information, and then taken the
necessary time to evaluate the information and to make judgments as
to whether or not a given state has authority under its SIP and
other elements of state law to regulate GHGs under the PSD program--
i.e., the steps EPA would have to take under CAA section 307(d)(3)
to provide to the public a meaningful ``summary'' of ``the factual
data on which the proposed rule is based'' and ``the major legal
interpretations and policy considerations underlying the proposed
rule''--may EPA propose a FIP for any state that has been determined
to lack that authority. (Emphasis in original.)
We disagree with this comment. The preamble for the FIP proposal
included the CAA section 307(d)(3)-required ``summary'' of the factual
basis and legal interpretations. To reiterate, EPA identified the
states for which EPA was proposing the FIP, 75 FR at 53886 and table
II-1 and 53889/1, and added that EPA would subject other states to the
FIP if they, too, became subject to the SIP call, id. 53886 and table
II-2 and 53889/2; described the timing for the FIP, id. 53889/2-3;
described the substance of the FIP, id. 53889/3-53890/1; and explained
that CAA section 110(c)(1) provided the legal basis, id. 53889/2. The
purpose of the CAA section 307(d)(3) requirements is to provide the
public with adequate notice, and these statements did so by making
clear the circumstances under which EPA was proposing to promulgate a
FIP and the timing and substance of the proposed FIP.
It is true that for any state, whether and when EPA would finalize
the FIP for any state depended on other factors, including whether EPA
would finalize the SIP call for that state, what deadline EPA would
establish, and whether the state would submit its required corrective
SIP revision by that deadline. But the FIP proposal put the public on
notice, with sufficient specificity, as to EPA's plan. In any event,
any FIP is necessarily dependent on other factors, including state
actions. That is, under any circumstances, whether EPA finalizes any
proposed FIP depends on whether (i) if the proposed FIP is based on the
failure of a state to make a required submittal, the state makes the
required submittal; or (ii) if the proposed FIP is based on EPA's
disapproval of a SIP revision, whether the state submits a revised SIP
revision that EPA then approves.
Most broadly, commenters' approach--which is that EPA cannot
propose a FIP in concert with a SIP call, but instead must proceed in
seriatim by completing the SIP call first and then proposing the FIP--
would result in lengthy delays in the establishment of a permitting
authority to process GHG-emitting sources' PSD permit applications. As
a result, commenters' approach could well cause delays in these
sources' ability to undertake construction and modification projects.
We include related comments and responses in the Response to
Comments document.\14\
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\14\ The Response to Comments document for the FIP can be found
in the docket for this rulemaking.
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C. Substance of GHG PSD FIP
In the FIP proposal, we stated:
The proposed FIP constitutes the EPA regulations found in 40 CFR
52.21, including the PSD applicability provisions, with a limitation
to assure that, strictly for purposes of this rulemaking, the FIP
applies only to GHGs. Under the PSD applicability provisions in 40
CFR 52.21(b)(50), the PSD program applies to sources that emit the
requisite amounts of any ``regulated NSR pollutant[s],'' including
any air pollutant ``subject to regulation.'' However, in states for
which EPA would promulgate a FIP to apply PSD to GHG-emitting
pollutants, the approved SIP already applies PSD to other air
pollutants. To appropriately limit the scope of the FIP, EPA
proposes in this action to amend 40 CFR 52.21(b)(50) to limit the
applicability provision to GHGs.
We propose this FIP because it would, to the greatest extent
possible, mirror EPA regulations (as well as those of most of the
states). In addition, this FIP would readily incorporate the phase-
in approach for PSD applicability to GHG sources that EPA has
developed in the Tailoring Rule and expects to develop further
through additional rulemaking. As explained in the Tailoring Rule,
incorporating this phase-in approach--including Steps 1 and 2 of the
phase-in as promulgated in the Tailoring Rule--can be most readily
accomplished through interpretation of the terms in the definition
``regulated NSR pollutant,'' including the term ``subject to
regulation.''
In accordance with the Tailoring Rule, * * * the FIP would apply
in Step 1 of the phase-in approach only to ``anyway sources'' (that
is, sources undertaking construction or modification projects that
are required to apply for PSD permits anyway due to their non-GHG
emissions and that emit GHGs in the amount of at least 75,000 tpy on
a CO2e basis) and would apply in Step 2 of the phase-in
approach to both ``anyway sources'' and sources that meet the
100,000/75,000-tpy threshold (that is, (i) sources that newly
[[Page 82251]]
construct and would not be subject to PSD on account of their non-
GHG emissions, but that emit GHGs in the amount of at least 100,000
tpy CO2e, and (ii) existing sources that emit GHGs in the
amount of at least 100,000 tpy CO2e, that undertake
modifications that would not trigger PSD on the basis of their non-
GHG emissions, but that increase GHGs by at least 75,000 tpy
CO2e).
Under the FIP, with respect to permits for ``anyway sources,''
EPA will be responsible for acting on permit applications for only
the GHG portion of the permit, and the state will retain
responsibility for the rest of the permit. Likewise, with respect to
permits for sources that meet the 100,000/75,000-tpy threshold, our
preferred approach--for reasons of consistency--is that EPA will be
responsible for acting on permit applications for only the GHG
portion of the permit, that the state permitting authorities will be
responsible for the non-GHG portion of the permit, and EPA will
coordinate with the state permitting authority as needed in order to
fully cover any non-GHG emissions that, for example, are subject to
BACT because they exceed the significance levels. We recognize that
questions may arise as to whether the state permitting authorities
have authority to permit non-GHG emissions; as a result, we solicit
comment on whether EPA should also be the permitting authority for
the non-GHG portion of the permit for these latter sources.
We propose that the FIP consist of the regulatory provisions
included in 40 CFR 52.21, except that the applicability provision
would include a limitation so that it applies for purposes of this
rulemaking only to GHGs.
75 FR 53889/3 to 53,890/1.
We are finalizing the FIP as we described it in the proposal, for
the same reasons that we indicated in the proposal, all as quoted
earlier in this preamble.
State, industry, and environmental commenters questioned how having
EPA issue the GHG portions of a permit while allowing states under a
FIP to continue to be responsible for issuing the non-GHG portions of a
PSD permit will work in practice. Commenters raised concerns about the
potential for a source to be ``faced with conflicting requirements and
the need to mediate among permit engineers making BACT decisions.''
We appreciate the commenters' concern. We well recognize that
dividing permitting responsibilities between two authorities--EPA for
GHGs and the state for all other pollutants--will require close
coordination between the two authorities to avoid duplication,
conflicting determinations, and delays. We note that this situation is
not without precedent. In many instances, EPA has been the PSD
permitting authority but the state has accepted a delegation for parts
of the PSD program, so that a source has had to go to both the state
and EPA for its permit. In addition, all nonattainment areas in the
nation are in attainment or are unclassifiable for at least one
pollutant, so that every nonattainment area is also a PSD area. In some
of these areas, the state is the permitting authority for nonattainment
new source review (NSR) and EPA is the permitting authority for PSD. As
a result, there are instances in which a new or modifying source in
such an area has needed a nonattainment NSR permit from the state and a
PSD permit from EPA.
EPA is working expeditiously to develop recommended approaches for
EPA regions and affected states to use in addressing the shared
responsibility of issuing PSD permits for GHG-emitting sources. In
addition, as discussed below, we intend for the GHG PSD FIP to remain
in place only as long as necessary for states' SIPs to be approved.
Moreover, in this interim period, we intend to delegate permitting
responsibility to those states that are able to implement it and that
request it. States that request and receive a delegation will be
responsible for issuing both the GHG part and the non-GHG part of the
permit, and that will moot commenters' concerns about split permitting.
EPA's most recent information is that of the seven states for which EPA
is promulgating a FIP, four states have indicated to EPA that they
intend to seek a delegation (Arizona, Idaho, Kansas, and Oregon) and a
fifth has indicated that it is considering seeking a delegation
(Arkansas).\15\
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\15\ McCarthy Declaration, pp. 136-38, Table II.
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In addition, beginning on July 1, 2011, those states without
authority to regulate GHG may not be able to issue PSD permits for non-
GHG pollutants to sources that are major only because of their GHG
emissions. This is because under the state's approved SIP, these
sources are not major sources. In this circumstance, EPA will also be
the PSD permitting authority for the non-GHG pollutants, but, as
discussed in detail earlier in this preamble, EPA intends to work
closely with each state to develop mutually acceptable approaches--
including delegation of this authority where possible--to maximize the
opportunity for the state to assume as much of the permitting
responsibilities as possible.
Finally, we are providing regulatory language to address Oregon.
Oregon's EPA-approved PSD SIP differs from the federal program with
respect to which sources are subject to PSD. EPA is promulgating a FIP
for Oregon that is consistent with the intent of the Tailoring Rule and
that accommodates the difference in the Oregon program. That is, as of
January 2, 2011, sources in Oregon that are currently required to get
PSD permits under the approved SIP will be subject to review under the
FIP for greenhouse gases if they exceed the Tailoring Rule thresholds.
As of July 1, 2011, the determination of which sources will be subject
to PSD review for greenhouse gases under the FIP will be consistent
with how applicability is determined under the current Oregon SIP for
other regulated NSR pollutants.
D. Period for GHG PSD FIP To Remain in Place
In the FIP proposal, we stated our intention to leave any
promulgated FIP in place for as short a period as possible, and to
process any corrective SIP revision submitted by the state to fulfill
the requirements of the SIP call as expeditiously as possible.
Specifically, we stated:
After we have promulgated a FIP, it must remain in place until
the state submits a SIP revision and we approve that SIP revision.
CAA section 110(c)(1). Under the present circumstances, we will act
on a SIP revision to apply the PSD program to GHG sources as quickly
as possible. Upon request of the state, we will parallel-process the
SIP submittal. That is, if the state submits to us the draft SIP
submittal for which the state intends to hold a hearing, we will
propose the draft SIP submittal for approval and open a comment
period during the same time as the state hearing. If the SIP
submittal that the state ultimately submits to us is substantially
similar to the draft SIP submittal, we will proceed to take final
action without a further proposal or comment period. If we approve
such a SIP revision, we will at the same time rescind the FIP.
75 FR 53889/2-3.
We continue to have these same intentions. Thus, we reaffirm our
intention to leave the GHG PSD FIP in place only as long as is
necessary for the state to submit and for EPA to approve a SIP revision
that includes PSD permitting for GHG-emitting sources. As discussed in
more detail later in this preamble, EPA continues to believe that the
states should remain the primary permitting authority.
E. Primacy of SIP Process
In the FIP proposal we stated,
This proposal [to promulgate a FIP] is secondary to our
overarching goal, which is to assure that in every instance, it will
be the state that will be that permitting authority. EPA continues
to recognize that the states are best suited to the task of
permitting because they and their sources have experience working
together in the state PSD program to process permit applications.
EPA seeks to remain solely in its primary role of providing
[[Page 82252]]
guidance and acting as a resource for the states as they make the
various required permitting decisions for GHG emissions.
Accordingly, beginning immediately we intend to work closely
with the states--as we have already begun to do since earlier in the
year--to help them promptly develop and submit to us their
corrective SIP revisions that extend their PSD program to GHG-
emitting sources. Moreover, we intend to promptly act on their SIP
submittals. Again, EPA's goal is to have each and every affected
state have in place the necessary permitting authorities by the time
businesses seeking construction permits need to have their
applications processed and the permits issued--and to achieve that
outcome by means of engaging with the states directly through a
concerted process of consultation and support.
EPA is taking up the additional task of proposing this FIP and
the companion SIP Call action only because the Agency believes it is
compelled to do so by the need to assure businesses, to the maximum
extent possible and as promptly as possible, that a permitting
authority is available to process PSD permit applications for GHG-
emitting sources once they become subject to PSD requirements on
January 2, 2011.
In order to provide that assurance, we are obligated to
recognize, as both states and the regulated community already do,
that there may be circumstances in which states are simply unable to
develop and submit those SIP revisions by January 2, 2011, or for
some period of time beyond that date. As a result, absent further
action by EPA, those states' affected sources confront the risk that
they may have to put on hold their plans to construct or modify, a
risk that may have adverse consequences for the economy.
Given these exigent circumstances, EPA proposes this plan,
within the limits of our power, with the intent to make a back-up
permitting authority available--and to send a signal of assurance
expeditiously in order to reduce uncertainty and thus facilitate
businesses' planning. Within the design of the CAA, it is EPA that
must fill that role of back-up permitting authority. This FIP and
the companion SIP Call action fulfill the CAA requirements to
establish EPA in that role.
At the same time, we propose these actions with the intent that
states retain as much discretion as possible in the hand of the
states. In the SIP Call rulemaking, EPA proposes that states may
choose the deadline they consider reasonable for submission of their
corrective SIP revision. If, under CAA requirements, we are
compelled to promulgate a FIP, we invite the affected state to
accept a delegation of authority to implement that FIP, so that it
will still be the state that processes the permit applications,
albeit operating under federal law. In addition, if we are compelled
to issue a FIP, we intend to continue to work closely with the state
to assist in developing and submitting for approval its corrective
SIP revision, so as to minimize the amount of time that the FIP must
remain in place.
75 FR at 53890/1-2.
In this rulemaking, we continue to have the same intentions and for
the same reasons. Thus, we continue to believe that this action is
necessary to ensure that sources in states with inadequate SIPs can
obtain the necessary PSD permits for their GHG emissions. We have
worked closely with states to establish reasonable deadlines for
submitting revised SIPs and are finalizing this FIP based on deadlines
agreed to by the affected states. We will continue to work with states,
as we have done throughout the rulemaking process, to assist in
development and expedite review of revised SIPs. In the meantime,
however, this FIP is necessary for the seven states identified here in
order to provide a permitting authority until an adequate SIP is
submitted and approved.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
OMB has previously approved the information collection requirements
contained in the existing regulations for PSD (see, e.g., 40 CFR 52.21)
and title V (see 40 CFR parts 70 and 71) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0003 and OMB control number 2060-0336 respectively.
The OMB control numbers for EPA's regulations in 40 CFR are listed in
40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this notice on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see 13 CFR 121.201); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; or (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
Although this rule would lead to federal permitting requirements
for certain sources, those sources are large emitters of GHGs and tend
to be large sources. After considering the economic impacts of this
rule on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This final rule will not impose any requirements on 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
section. The action imposes no enforceable duty on any state, local or
tribal governments or the private sector. This action merely prescribes
EPA's action for states that have not met their existing obligation for
PSD SIP submittal. Thus, this rule is not subject to the requirements
of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action merely
prescribes EPA's action for states that have not met their existing
obligation for PSD SIP submittal.
E. Executive Order 13132--Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action merely prescribes EPA's
action for states that have not met their existing obligation for GHG
PSD SIP submittal. 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
[[Page 82253]]
specifically solicited comment on the proposal for this action from
state and local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action does
not impose a FIP in any tribal area. Thus, Executive Order 13175 does
not apply to this action.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets E.O. 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 E.O. has the
potential to influence the regulation. This action is not subject to
E.O. 13045 because it merely prescribes EPA's action for states that do
not meet their existing obligation for PSD SIP submittal.
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action merely prescribes EPA's
action for states that have not met their existing obligation for PSD
SIP submittal.
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 rulemaking 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 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This rule merely prescribes EPA's action for states that
have not met their existing obligation for PSD SIP submittal.
K. Determination Under Section 307(d)
Pursuant to section 307(d)(1)(B) of the CAA, this action is subject
to the provisions of section 307(d). Section 307(d)(1)(B) provides that
the provisions of section 307(d) apply to ``the promulgation or
revision of an implementation plan by the Administrator under section
110(c) of this Act.''
L. 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 does not constitute a ``major rule'' as defined
by 5 U.S.C. 804(2). Therefore, this action will be effective December
30, 2010.
V. Judicial Review
Section 307(b)(1) of the CAA specifies which Federal Courts of
Appeal have jurisdiction to hear petitions for review of which 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 is nationally applicable under CAA section 307(b)(1). The
circumstances that have led to this rulemaking are national in scope
and are substantially the same for each affected state. They include
EPA's promulgation of nationally applicable GHG requirements that, in
conjunction with the operation of the CAA PSD provisions, have resulted
in GHG-emitting sources becoming subject to PSD; as well as EPA's
finding of substantial SIP inadequacy, imposition of a SIP call, and
establishment of a deadline for SIP submittal. Moreover, in this rule,
EPA is applying uniform principles for promulgating the FIP for each of
the affected states, concerning, e.g., timing (that is, that EPA is
promulgating the FIP for each affected state immediately) and scope
(that is, that EPA is applying the FIP for GHG-emitting sources). The
FIP for each affected state has substantially the same, if not
identical, terms. This rulemaking action is supported by a single
administrative record, and does not involve factual questions unique to
the different affected states. In addition, this rule applies to
multiple States across the country, and in several judicial circuits.
For similar reasons, this rule is based on determinations of
nationwide scope or effect. For each of the seven affected States, EPA
is determining that it is appropriate to promulgate the FIP immediately
and to apply it to GHG-emitting sources, but not other sources. These
determinations are the same for each of the states. The other
provisions of the FIP are substantially the same, if not identical, for
each affected state. Moreover, EPA is making these determinations and
promulgating this action within the context of nationwide rulemakings
and interpretation of the applicable CAA provisions, as
