[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82536-82564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32766]
[[Page 82535]]
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Part V
Environmental Protection Agency
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40 CFR Part 52
Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule
Federal Register / Vol. 75 , No. 250 / Thursday, December 30, 2010 /
Rules and Regulations
[[Page 82536]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2009-0517; FRL-9244-9]
RIN 2060-AQ62
Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
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SUMMARY: This action is another in a series of steps EPA is taking to
implement the Prevention of Significant Deterioration (PSD) program for
greenhouse gas (GHG)-emitting sources. EPA is finalizing its proposed
rulemaking to narrow its previous approval of State Implementation Plan
(SIP) PSD programs in 24 states that apply to GHG-emitting sources.
Specifically, EPA is withdrawing its previous approval of those
programs to the extent they apply PSD to GHG-emitting sources below the
thresholds in the final Tailoring Rule, which EPA promulgated by
Federal Register notice dated June 3, 2010. Having narrowed its prior
approval, EPA asks that each affected state withdraw from EPA
consideration the part of its SIP that is no longer approved. The
states for whose SIPs EPA is narrowing approval are: Alabama,
California, Colorado, Georgia, Indiana, Iowa, Louisiana, Maine,
Maryland, Mississippi, Missouri, New Hampshire, New Mexico, North
Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Virginia, and Wisconsin.
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-2009-0517. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information 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. Publicly available docket materials are available
either electronically in http://www.regulations.gov or in hard copy at
the EPA Docket Center EPA/DC, EPA West, Room 3334, 1301 Constitution
Avenue, Northwest, Washington, DC. The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the EPA Docket Center is (202)
566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Michael S. Brooks, Air Quality
Policy Division, Office of Air Quality Planning and Standards (C504-
01), Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-3539; fax number: (919) 541-5509; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION: For information related to a specific state,
local, or tribal permitting authority, please contact the appropriate
EPA regional office:
------------------------------------------------------------------------
Contact for regional
office (person,
EPA regional office mailing address, Permitting authority
telephone number)
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I.......................... Dave Conroy, Chief, Connecticut,
Air Programs Branch, Massachusetts,
EPA Region 1, 5 Post Maine, New
Office Square, Suite Hampshire, Rhode
100, Boston, MA Island, and
02109-3912, (617) Vermont.
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 Anderson, District of
Chief, Permits and Columbia, Delaware,
Technical Assessment Maryland,
Branch, EPA Region Pennsylvania,
3, 1650 Arch Street, Virginia, and West
Philadelphia, PA Virginia.
19103-2029, (215)
814-2173.
IV......................... Lynorae Benjamin Alabama, Florida,
Chief, Regulatory Georgia, Kentucky,
Development Section, Mississippi, North
Air, Pesticides and Carolina, South
Toxics Management Carolina, and
Division, EPA Region Tennessee.
4, Atlanta Federal
Center, 61 Forsyth
Street, SW, Atlanta,
GA 30303-3104, (404)
562-9040.
V.......................... J. Elmer Bortzer, Illinois, Indiana,
Chief, Air Programs Michigan,
Branch (AR-18J), EPA Minnesota, Ohio,
Region 5, 77 West and Wisconsin.
Jackson Boulevard,
Chicago, IL 60604-
3507, (312) 886-1430.
VI......................... Jeff Robinson, Chief, Arkansas, Louisiana,
Air Permits Section, New Mexico,
EPA Region 6, Oklahoma, and
Fountain Place 12th Texas.
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.
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[[Page 82537]]
I. General Information
A. Does this action apply to me?
Entities potentially affected by this rule include states, local
permitting authorities, and tribal authorities.
Entities potentially affected by this rule also include sources in
all industry groups, which have a direct obligation under the Clean Air
Act (CAA) to obtain a PSD permit for GHGs for projects that meet the
applicability thresholds set forth in the Tailoring Rule. The majority
of entities potentially affected by this action are expected to be in
the following groups:
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Industry Group NAICS \a\
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Agriculture, fishing, and hunting...... 11.
Mining................................. 21.
Utilities (electric, natural gas, other 2211, 2212, 2213.
systems).
Manufacturing (food, beverages, 311, 312, 313, 314, 315, 316.
tobacco, textiles, leather).
Wood product, paper manufacturing...... 321, 322.
Petroleum and coal products 32411, 32412, 32419.
manufacturing.
Chemical manufacturing................. 3251, 3252, 3253, 3254, 3255,
3256, 3259.
Rubber product manufacturing........... 3261, 3262.
Miscellaneous chemical products........ 32552, 32592, 32591, 325182,
32551.
Nonmetallic mineral product 3271, 3272, 3273, 3274, 3279.
manufacturing.
Primary and fabricated metal 3311, 3312, 3313, 3314, 3315,
manufacturing. 3321, 3322, 3323, 3324, 3325,
3326, 3327, 3328, 3329.
Machinery manufacturing................ 3331, 3332, 3333, 3334, 3335,
3336, 3339.
Computer and electronic products 3341, 3342, 3343, 3344, 3345,
manufacturing. 4446.
Electrical equipment, appliance, and 3351, 3352, 3353, 3359.
component manufacturing.
Transportation equipment manufacturing. 3361, 3362, 3363, 3364, 3365,
3366, 3366, 3369.
Furniture and related product 3371, 3372, 3379.
manufacturing.
Miscellaneous manufacturing............ 3391, 3399.
Waste management and remediation....... 5622, 5629.
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.
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\a\ North American Industry Classification System.
B. How is this preamble organized?
The information presented in this preamble is organized as follows:
Outline
I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
II. Overview of the Final Rule
III. Proposed Rule
IV. Final Rule
A. Action
B. Legal Basis
C. Legal Mechanisms for EPA Action
V. Comments and Responses
A. Comments Regarding the Legal Mechanism for the Current Action
B. Comments on Potential Triggering of Anti-Backsliding
Provisions
C. Comments on Persisting Practical Difficulties at the State
Level
D. Comments on Preferred Alternative Courses of Action
VI. Effective Date
VII. Statutory and Executive Orders Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045--Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211--Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
L. Judicial Review
VIII. Statutory Language
II. Overview of the Final Rule
This action finalizes EPA's proposal to narrow the approval of SIPs
that we included in what we call the proposed Tailoring Rule,
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule: Proposed Rule,'' 74 FR 55292, 55340 (October 27, 2009).
EPA finalized the Tailoring Rule by Federal Register notice dated June
3, 2010, ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule: Final Rule, 75 FR 31,514. The Tailoring
Rule, which followed a series of actions by EPA that will trigger PSD
applicability to GHG-emitting sources as of January 2, 2011, limits PSD
applicability for GHG emissions to larger sources.
The Tailoring Rule accomplished this purpose by setting thresholds
at which GHG emissions become subject to regulation for PSD and Title V
purposes.\1\ Under the Tailoring Rule, a source becomes subject to PSD
requirements based on its GHG emissions only if it both emits GHGs at
or above the Tailoring Rule thresholds,\2\ which are calculated on a
carbon dioxide equivalent (CO2e) basis; and it emits GHGs at
levels above the statutory 100/250 tons per year (tpy) mass-based
threshold generally applicable to all PSD-regulated pollutants, and--if
it is being modified--has or will have an emission increase on a mass
basis. The Tailoring Rule thresholds were designed to relieve the
overwhelming administrative burdens and costs associated with the
dramatic increase in permitting burden that would have resulted from
applying PSD at the statutory levels on January 2, 2011. Instead, the
Tailoring rule established a phasing in of applicability for GHG
sources, starting with the largest GHG emitters.
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\1\ Only the PSD provisions are relevant for this action.
\2\ The Tailoring Rule thresholds establish applicability of the
PSD permitting program to GHG-emitting sources only if they emit GHG
in amounts above the 75,000/100,000 tpy CO2e.
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However, in proposing the Tailoring Rule, EPA recognized that even
after it finalized the Tailoring Rule, most of the SIPs with approved
PSD programs would--until they were revised--
[[Page 82538]]
continue to apply PSD at the statutory thresholds, even though the
states would not have sufficient resources to implement the PSD program
at those levels. Accordingly, the proposed Tailoring Rule included a
proposal to narrow EPA's previous approval of SIPs such that the SIPs
would only apply to GHG emissions at or above the higher thresholds
established in the Tailoring Rule. When EPA finalized the Tailoring
Rule, EPA did not, however, finalize that part of the proposal.
Instead, EPA waited to collect more information from the states to
determine whether such action was necessary, and, if so, for which
states. EPA is now finalizing that part of the Tailoring Rule proposal
in 24 states.
Thus, in this action, EPA is narrowing its previous approval of
those approved PSD SIP programs that apply PSD to GHG-emitting sources.
Specifically, EPA is withdrawing their previous approvals of those
programs to the extent the SIPs apply PSD to increases in GHG emissions
from GHG-emitting sources with emissions below the Tailoring Rule
thresholds. The portions of the PSD programs regulating GHGs from GHG-
emitting sources with emissions at or above the Tailoring Rule
thresholds remain approved.
The effect of EPA narrowing its approval in this manner is that the
provisions of previously approved SIPs that apply PSD to GHG emissions
increases from sources emitting GHGs below the Tailoring Rule
thresholds will have the status of having been submitted by the state
but not yet acted upon by EPA. EPA suggests that affected states take
one of two actions to withdraw these no-longer-approved SIP PSD
provisions. The state may submit a SIP revision for EPA's approval that
incorporates the Tailoring Rule thresholds into the SIP. EPA will treat
the approval of such a submission as removing these no-longer-approved
provisions. Or, a state may submit a letter to EPA stating that it is
withdrawing these provisions from EPA's consideration. For any state
that takes neither of these actions, EPA intends to propose to
disapprove those provisions. The disapproval, if finalized, will not
result in the need to resubmit another SIP revision, sanctions, or a
federal implementation plan (FIP). This is because the provisions of
the SIP that would be disapproved are not required for any purpose
under the CAA or necessary to meet any CAA standard.
This action ensures that the federal law applicable in the affected
states does not require PSD permitting for GHG emissions below the
final Tailoring Rule thresholds as of January 2, 2011. Once the states
take action to amend their state laws, then sources in the affected
states will not be subject to federal or state requirements to obtain
permits at the lower 100/250 tpy level. Most, if not all, of the
affected states have already begun taking steps toward completing these
changes at the state level, and plan to complete changes to their state
law and make those changes effective by January 2, 2011. In general,
these states are now in the process of (or have recently completed)
incorporating the state law changes into SIP revisions to submit to EPA
for approval. The combination of this rule and state actions will, in
the affected states, eliminate, or at least greatly minimize, the time
during which GHG-emitting sources that are below the Tailoring Rule
thresholds will be subject to PSD in the state under either state or
federal law while SIP revisions are being developed, submitted, and
approved.
The states for whose SIPs EPA is narrowing approval are: Alabama,
California,\3\ Colorado, Georgia, Indiana, Iowa, Louisiana, Maine,
Maryland, Mississippi, Missouri, New Hampshire, New Mexico,\4\ North
Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota,
Tennessee, Utah, Vermont, Virginia, and Wisconsin.
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\3\ Specifically, EPA is narrowing its approval of the SIPs for
3 districts within California: Mendocino County, North Coast
Unified, and Northern Sonoma County.
\4\ EPA is narrowing its approval of both the SIP for New
Mexico, as well as the SIP for Albuquerque.
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III. Proposed Rule
We assume familiarity here with the statutory and regulatory
background discussed in the preambles for the Tailoring Rule proposal
and final action, and will only briefly summarize that background here.
Under the CAA PSD program, major stationary sources must obtain a
permit prior to undertaking construction or modification projects that
would result in specified amounts of new or increased emissions of air
pollutants that are subject to regulation under other provisions of the
CAA. CAA sections 165(a)(1), 169(1). The permit must, among other
things, include emission limitations associated with the best available
control technology (BACT). CAA section 165(a)(4).
In recent months, EPA completed four distinct actions related to
greenhouse gases under the Clean Air Act. These actions include, as
they are commonly called, the ``Endangerment Finding'' and ``Cause or
Contribute Finding,'' which we issued in a single final action,\5\ the
``Johnson Memo Reconsideration (also called the ``Timing Decision''),''
\6\ the ``Light-Duty Vehicle Rule (LDVR),'' \7\ and the ``Tailoring
Rule.'' \8\ In the Endangerment Finding, which is governed by CAA Sec.
202(a), the Administrator exercised her judgment, based on an
exhaustive review and analysis of the science, to conclude that ``six
greenhouse gases taken in combination endanger both the public health
and the public welfare of current and future generations.'' 74 FR at
66,496. The Administrator also found ``that the combined emissions of
these greenhouse gases from new motor vehicles and new motor vehicle
engines contribute to the greenhouse gas air pollution that endangers
public health and welfare under CAA section 202(a).'' Id. The
Endangerment Finding led directly to promulgation of the Vehicle Rule,
also governed by CAA Sec. 202(a), in which EPA set standards for the
emission of greenhouse gases for new motor vehicles built for model
years 2012-2016. 75 FR 25,324. The other two actions, the Johnson Memo
Reconsideration and the Tailoring Rule, governed by the PSD and Title V
provisions in the CAA, were issued to address the automatic statutory
triggering of these programs for greenhouse gases due to the Vehicle
Rule establishing the first controls for greenhouse gases under the
Act. More specifically, the Johnson Memo Reconsideration provided EPA's
interpretation of a pre-existing definition in its PSD regulations
delineating the ``pollutants'' that are taken into account in
determining whether a source must obtain a PSD permit and the
pollutants each permit must control. Regarding the Vehicle Rule, the
Johnson Memo Reconsideration stated that such regulations, when they
take effect on January 2, 2011, will, by operation of the applicable
CAA requirements, subject GHG-emitting sources to PSD
[[Page 82539]]
requirements. 75 FR 17,004. The Tailoring Rule established a series of
steps by which PSD and Title V permit requirements for greenhouse gases
are phased in, starting with the largest sources of greenhouse gas
emissions. 75 FR 31,514. In addition, by Federal Register notice dated
September 2, 2010, EPA proposed to find that the SIPs for 13 states
with approved PSD programs are substantially inadequate to meet CAA
requirements because they fail to apply their PSD program to GHG-
emitting sources, and EPA proposed to issue a ``SIP call'' under CAA
section 110(k)(5) for those states that would require submission of a
corrective SIP revision. 75 FR 53,892. At the same time, EPA proposed a
FIP, under CAA Sec. 110(c), for those states. 75 FR 53,883.
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\5\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66,496 (December 15, 2009).
\6\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17,004 (April
2, 2010). This action finalizes EPA's response to a petition for
reconsideration of ``EPA's Interpretation of Regulations that
Determine Pollutants Covered by Federal Prevention of Significant
Deterioration (PSD) Permit Program'' (commonly referred to as the
``Johnson Memo''), December 18, 2008.
\7\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25,324
(May 7, 2010).
\8\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31,514 (June 3,
2010).
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In the proposed Tailoring Rule, EPA proposed a major stationary
source threshold of 25,000 tpy for GHG on a CO2e basis, for
at least a specified period. EPA recognized that even so, many SIPs
with approved PSD programs would require PSD permitting of GHG-emitting
sources at the 100/250 tpy statutory major source threshold generally
applicable to regulated New Source Review (NSR) pollutants, as well as
at the ``any increase'' level for modifications, and that these SIPs
would remain in place even after we finalized the Tailoring Rule. Thus,
in those states, until states revised those SIPs, sources would remain
subject to these thresholds as a matter of both state and federal law
even after we finalized the Tailoring Rule. This would result in the
same problems of overwhelming administrative burdens and costs that we
designed the Tailoring Rule to address.
EPA also recognized that the solution to these problems lay in the
form of SIP revisions that EPA would approve to raise the thresholds in
approved state PSD permitting programs to conform to the Tailoring Rule
(or, in the alternative, in the form of increased state resources).
Until the states could develop and submit for approval such SIP
revisions, and EPA could approve them, EPA proposed to narrow its
approval of the existing EPA-approved SIPs that would regulate GHG
emissions at levels below the Tailoring Rule thresholds. Specifically,
EPA proposed to narrow its approval of the permitting threshold
provisions, including the significance threshold provisions in the
SIPs, to the extent those provisions required PSD permits for sources
whose GHG emissions fall below the proposed Tailoring Rule thresholds.
EPA based its proposed narrowing of approval on the fact that while the
SIPs would require PSD to apply at the 100/250 tpy levels (and at the
any mass increase level for modifications), the states do not have the
resources to implement the program at that level, and thus the SIPs
were inconsistent with CAA section 110(a)(2)(E)(i), which requires that
states provide necessary assurances that they have adequate funding and
personnel to implement their SIPs. EPA proposed to rely, as the legal
mechanisms for the proposed narrowing of approval, on CAA section
301(a), which provides the EPA Administrator with general regulatory
authority to issue regulations necessary to carry out her CAA
functions; and on the authority of an agency to reconsider its actions
inherent in the Administrative Procedures Act (APA) section 553. In the
alternative, EPA proposed to rely on the error correction provision of
CAA section 110(k)(6). EPA did not propose to issue a SIP call under
CAA section 110(k)(5) for these SIP provisions.
In the final Tailoring Rule, EPA established a schedule to phase-in
threshold levels of GHG emissions below which a source will not be
required to obtain a PSD permit.\9\ EPA established the initial levels
(which are higher than those in the proposed Tailoring Rule) in the
first two steps of the phase-in schedule, committed the agency to take
future steps addressing smaller sources, and excluded the smallest
sources from PSD permitting for GHG emissions until at least April 30,
2016.
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\9\ The final Tailoring Rule also established a threshold of
100,000 tpy CO2e for when a source would be considered a
``major source'' subject to title V permitting under 40 CFR part 70
and part 71. This rule addresses issues related to adoption of the
Tailoring Rule thresholds for state PSD programs only. EPA will
promulgate a separate rule to address issues related to the adoption
of the Tailoring Rule threshold for approved state operating permit
programs. EPA notes, however, that some state title V programs are
incorporated into SIPs and that further corrections of the SIP may
be necessary in such cases.
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In addition, in the final Tailoring Rule, EPA chose revision of the
definition of the term ``subject to regulation'' as the mechanism to
revise the PSD thresholds for GHG. Under the PSD program, a major
stationary source is subject to PSD. A major stationary source is
defined as a source that emits 100/250 tpy on a mass basis of a
regulated NSR pollutant, and a regulated NSR pollutant, in turn, is
defined as, among other things, a pollutant that is subject to
regulation under the CAA. In the final Tailoring Rule, EPA defined the
term ``subject to regulation'' so that GHG emissions from sources at or
above specified thresholds (depending on the circumstances, 75,000 and/
or 100,000 tpy on a CO2e basis) are treated as subject to
regulation. Thus, sources that emit that amount are subject to PSD as
long as that amount of GHG also exceeds 100/250 tpy on a mass basis and
with respect to modifications there is a defined emissions
increase.\10\
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\10\ Unlike the proposed Tailoring Rule, the final Tailoring
Rule did not set significance levels for GHG emissions.
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Some states advised EPA that it is likely they would be able to
implement the Tailoring Rule thresholds by interpreting the term
``subject to regulation'' in their SIPs. A state's implementation of
the Tailoring Rule in this manner, or in any other manner, prior to
January 2, 2011, obviates the need for EPA to narrow its approval of
the state's SIP. Thus, in the final Tailoring Rule, EPA delayed final
action on its proposal to narrow approval for any SIP-approved PSD
programs. EPA deferred making any decision regarding whether to narrow
its approval of any SIPs until after learning the process and time-line
for states to implement the Tailoring Rule. Based on information it had
received, EPA expected that many states would quickly adopt the
interpretation of the term ``subject to regulation'' used in the final
Tailoring Rule, and thereby obviate the need for EPA to narrow its
approval or take any other action with respect to the SIP. Thus, EPA
asked states to submit information--in the form of letters due within
60 days of publication of the Tailoring Rule (which we refer to as the
60-day letters)--that would help EPA determine whether it needed to
narrow its approval of any SIPs.
Almost all states submitted 60-day letters. The letters, in
conjunction with other information EPA received, indicate that the
states, localities, and other jurisdictions may be divided into three
categories. The first, which includes 7 states, 35 subsections of
states, the District of Columbia, American Samoa, Guam, Puerto Rico,
the U.S. Virgin Islands, and Indian Territory, does not have an
approved SIP PSD permitting program. Instead, federal requirements
apply. Thus, in these jurisdictions, the thresholds in the Tailoring
Rule will apply without further action.
The second category includes the states (or districts within
states) whose SIPs do not appear to apply the PSD program to GHG-
emitting sources. As a result, EPA proposed a SIP call and FIP for
these states by notice dated September 2, 2010. 75 FR 53892. Based on
the 60-day letters, letters EPA received in response to the proposed
SIP call and FIP (which we refer to as
[[Page 82540]]
the 30-day letters), and additional information EPA has received, EPA
finalized (at about the same time as this action) a SIP call in 13
states, including 4 districts within states.
The remaining 30 states and 6 districts within states, the third
category, have approved SIPs that apply their PSD program to GHG-
emitting sources. In those states, absent further action, sources
emitting GHGs at or above the 100/250 tpy levels will be subject to PSD
requirements as of January 2, 2011, if they construct or modify. Of
these localities, 6 states and 4 districts within states have indicated
that they would interpret their SIPs to regulate GHG emissions only
above the Tailoring Rule thresholds, and no further action was needed
to do so. EPA approved a SIP for 1 state--New York--for the first time
in November 2010, and that original approval itself was limited to
exclude the part of the PSD program that applies to GHG emissions below
the Tailoring Rule thresholds. All or part of twenty-four states,
including 4 districts, indicated that they would need to submit SIP
revisions to EPA in order to incorporate the Tailoring Rule thresholds.
Some of these states indicated, however, that they would not be able to
complete these changes prior to January 2, 2011. Some states have
completed their SIP revisions and submitted them to EPA, and EPA
expects to take final action on them promptly. EPA has only signed SIP
revision approvals for two states, Alabama and Mississippi, though
neither of these approvals has yet been published as of the signing of
this rule. These states--including those that have indicated that they
would submit SIP revisions to EPA to incorporate the Tailoring Rule
thresholds, but for which EPA has not approved such SIP revision as of
the date of this rule--are included in this rule.
It should be noted that this rule focuses on eliminating the PSD
obligations under federal law for sources below the Tailoring Rule
thresholds in states in the third category, those with approved SIPs
that do not incorporate the Tailoring Rule. The sources in those states
also have permitting obligations under state law. EPA has strongly
encouraged states to eliminate the state law obligations by revising
their state law as promptly as possible. Such a revision to state law
can eliminate those sources' state obligations, even before the state
is able to process the revision as a SIP revision and submit it to EPA
for approval. In almost all cases, states are proceeding to revise
their state law to reflect the Tailoring Rule thresholds and will have
done so by January 2, 2011, or very soon thereafter.
In their 60-day letters, none of the states indicated either that
they intended to regulate GHG-emitting sources at a level below the
Tailoring Rule thresholds, or that they could or would increase their
permitting resources to do so.
IV. Final Rule
A. Action
EPA is taking final action to narrow its approval of the SIPs for
certain states. In the final Tailoring Rule, EPA established levels of
GHG emissions below which PSD provisions do not apply. However, some
SIPs currently apply the PSD program to a source that emits GHGs below
the Tailoring Rule thresholds, at levels at which, under the Tailoring
Rule, GHGs are not a pollutant ``subject to regulation'' under the CAA,
so that the emitting source is not a major stationary source subject to
PSD on account of its GHG emissions. Thus, EPA is now narrowing its
approval of some approved SIPs so that the PSD programs under those
SIPs are approved to apply to GHG-emitting sources only if those
sources emit GHGs at or above Tailoring Rule thresholds. EPA is
accomplishing this narrowing by withdrawing its previous approval of
those PSD programs to the extent they apply to GHG-emitting sources
that emit below the Tailoring Rule thresholds.
Those provisions of SIPs from which EPA is withdrawing its approval
will be treated as submitted by the state for approval and not yet
acted upon by EPA. If a state submits a SIP revision for EPA's approval
that incorporates the Tailoring Rule thresholds into the SIP, EPA will
treat the approval of the submission as removing these no-longer-
approved provisions. We note that once SIP revisions incorporating the
Tailoring Rule thresholds are approved after the issuance of this rule,
they will supersede the changes made in this rule. That is, this rule
amends the regulatory language in the Code of Federal Regulations (CFR)
approving each of the relevant SIPs. When EPA approves a SIP revision,
EPA will remove from the CFR the regulatory language added by this
rule.
Alternatively, EPA suggests that the affected states may withdraw
those provisions from EPA's consideration through a letter to the EPA
Regional Administrator. EPA offers the following as model language that
the state should feel free to use, but is not required to use:
In its final rule entitled ``Limitation of Approval of
Prevention of Significant Deterioration Provisions Concerning
Greenhouse Gas Emitting-Sources in State Implementation Plans'' and
published on [DATE OF PUBLICATION IN THE FEDERAL REGISTER], EPA
amended the Code of Federal Regulations at [LOCATION OF CFR
AMENDMENT RELEVANT TO STATE/DISTRICT] and withdrew EPA's approval of
that portion of [STATE]'s SIP that would require sources to seek PSD
permitting for emissions of GHGs in amounts below the thresholds
specified in the Tailoring Rule, 74 FR 55292 (October 27, 2009).
[STATE] now acts to withdraw from EPA's consideration that portion
of [STATE]'s SIP from which EPA withdrew its approval in that
action. These provisions are no longer intended for inclusion in the
SIP, and are no longer before EPA for its approval or disapproval.
If a state does not withdraw the SIP provisions for which EPA is
rescinding approval, and does not submit a SIP revision incorporating
the Tailoring Rule thresholds that would supercede this rule, EPA
intends to propose to disapprove the relevant provisions in the near
future. Any disapproval of such SIP provisions--again, those applying
PSD to GHG-emitting sources that emit GHGs below the Tailoring Rule
threshold--will not, if finalized, result in the need to resubmit
another SIP revision, in sanctions, or in a FIP. This is because the
relevant provisions are not necessary to meet any applicable CAA
requirement. See CAA sections 110(k)(3) (requirements for SIP
disapproval), 179(a)(2) (sanctions).
In the proposed Tailoring Rule, EPA proposed to narrow its approval
for all 50 states, as well as the District of Columbia, Guam, Puerto
Rico, the U.S. Virgin Islands, and American Samoa. EPA now finalizes
this narrowing of approval for only the SIPs with PSD programs that
will apply to GHG emissions as of January 2, 2011, and for which the
states have not either said that they interpret their SIPs to
incorporate the Tailoring Rule thresholds for GHG emissions without the
need for further action, or completed taking any further action
necessary to incorporate the Tailoring Rule thresholds. This rule does
not include final action on the proposal to narrow EPA's approval of
SIPs for states that do not have approved PSD SIP programs (the first
category previously described), and states that have approved PSD SIP
programs that do not apply to GHGs (the second category previously
described). This rule also does not take final action on the proposal
to narrow EPA's approval of SIPs for states that have PSD SIP programs
that cover GHG emissions, and that have already incorporated the
Tailoring Rule thresholds via interpretation, SIP revision, or any
other mechanism. The language being used
[[Page 82541]]
for this final narrowing rule reflects changes from the language
proposed in the Tailoring Rule in order to clarify and reflect the
decisions about permitting thresholds reached in the final Tailoring
Rule.
The states for whom EPA is narrowing its approval of the SIP PSD
program in this action include: Alabama, California, Colorado, Georgia,
Indiana, Iowa, Louisiana, Maine, Maryland, Mississippi, Missouri, New
Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island,
South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and
Wisconsin.
B. Legal Basis
EPA is narrowing its previous approval for each of the affected
SIPs because EPA erred when it approved each SIP's PSD program. In
those approvals, EPA failed to account for an important flaw in the
SIP. As a result, EPA is rescinding its previous approval for the part
of the SIP that is flawed, and EPA is leaving in place its previous
approval for the rest of the SIP. The flaw is that the applicability
provisions of the PSD program (which determined the pollutants to which
PSD permitting applies) were phrased so broadly that they could, under
certain circumstances, sweep in more sources than the program could
accommodate in light of the resources that, under the SIP--in
accordance with what we refer to as the ``state assurances'' provision
under CAA Sec. 110(a)(2)(E)(i)--were available or for which a plan was
in place to acquire. The part of PSD applicability that is broader than
what the state assurances covered is the part that exceeds EPA
requirements for PSD applicability. The following section discusses
this basis in more detail, beginning with the PSD applicability
provisions; then the state assurances provisions; and then how the two
provisions, read together, gave rise to the flaws in the SIPs.
1. PSD Applicability
Each of the states subject to this rule has an approved PSD SIP
program that applies to sources of pollutants subject to regulation
under the CAA. Some states' programs meet EPA's PSD requirements as
they read prior to promulgation of the 2002 NSR rulemaking, which we
refer to as the NSR Reform rule.\11\ These pre-Reform SIPs, include a
PSD applicability provision that provides that PSD applies to ``any air
pollutant subject to regulation.'' 40 CFR 51.166(b)(1)(i) (2001). Other
states subject to this rule have an approved PSD program that includes
the NSR Reform rule. The Reform requirements, replaced the term ``any
air pollutant subject to regulation'' with the term ``regulated NSR
pollutant,'' 40 CFR 51.166(b)(1)(i), and defined that latter term to
include pollutants regulated under specified provisions of the CAA as
well as ``any pollutant that is otherwise subject to regulation under
[the CAA].'' 40 CFR 51.166(b)(49)(iv). This quoted provision is similar
to the pre-Reform provision, as both include the phrase ``subject to
regulation'' in reference to the types of air pollutants that will be
subject to the PSD program. Thus, each of the states subject to this
rule has an approved PSD program--whether pre-Reform or Reform--that
applies to any air pollutant that is ``subject to regulation'' under
the CAA.
---------------------------------------------------------------------------
\11\ ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Baseline Emissions
Determination, Actual-to-Future-Actuals Methodology, Plantwide
Applicability Limitations, Clean Units, Pollution Control
Projects,'' Final Rule, 67 FR 10816 (December 2, 2002).
---------------------------------------------------------------------------
These applicability provisions mean that under federal law, in each
of these SIPs, PSD will expand to cover additional sources that emit a
pollutant different than the ones already covered under the PSD program
as soon as EPA promulgates a rule regulating that pollutant under any
other provision of the CAA. Depending on the pollutant and the number
and size of sources that emit it, these applicability provisions could
result in a significant and rapid expansion of the PSD program. This is
precisely what is happening at present, now that EPA has promulgated
the LDVR, to take effect on January 2, 2011, at which time GHGs will
become subject to regulation under CAA section 202(a).
Importantly, the states affected by this action, while including in
their SIPs a PSD applicability provision that applies PSD to any
pollutant ``subject to regulation,'' generally do not interpret their
applicability provision, or any other provision in their SIPs, to
incorporate limits on PSD applicability with respect to a new pollutant
and the SIPs do not contain any other mechanism that would allow the
State to interpret applicability more narrowly. As a result, the
affected states' applicability provisions include no way to limit the
speed or extent of the expansion a PSD program might be required to
undergo to regulate new pollutants.
The case of GHGs has highlighted the potential scale of a PSD
program for a new pollutant under such open-ended provisions. As
described in the final Tailoring Rule, EPA promulgated the LDVR, which
is the rule that, upon January 2, 2011, when it takes effect, subjects
GHGs to regulation. The LDVR identifies GHGs as the group of six air
pollutants made up of carbon dioxide, methane, nitrous oxide, sulfur
hexafluoride, hydrofluorocarbons, and perfluorocarbons. 75 FR 31514,
31519 (June 3, 2010) (Tailoring Rule discussion); 75 FR 25324 (May 7,
2010) (LDVR). Accordingly, the SIPs affected by this action will, as of
January 2, 2011, treat GHGs as a pollutant ``subject to regulation''
and therefore apply PSD to GHG-emitting sources. As previously
discussed, these SIPs will apply PSD to new GHG-emitting sources at the
100/250 tpy levels and to modified GHG-emitting sources at the any-
mass-increase levels. None of these SIPs, as currently approved,
permits the interpretation of the PSD applicability more narrowly, to
apply to only GHG-emitting sources at or above the Tailoring Rule
thresholds. In contrast, as previously noted, several other states are
able to interpret their SIPs more narrowly and, as a result, are not
subject to this action.
The scale of the administrative program needed to effectively
permit all sources emitting GHGs at the 100/250 tpy levels has
highlighted the unconstrained nature of the SIPs' applicability
provisions. EPA has recognized that a PSD program regulating GHGs at
the 100/250 tpy levels is administratively unmanageable and creates
absurd results that were not intended by Congress when it passed the
CAA. Thus, in the Tailoring Rule, EPA phased in GHG PSD applicability,
so that at the outset PSD applies to GHG-emitting sources only if they
also emit GHG in amounts above the 75,000/100,000 tpy CO2e
thresholds set out in that rule.\12\ EPA included this limit in its
regulations, and through this limit greatly reduced the extent of PSD
applicability. This limit was set at a level at which EPA determined
states would have the resources to implement a PSD program for GHG
emissions. By contrast, each of these SIPs applies GHG PSD
applicability more broadly--indeed, much more broadly, to far more
[[Page 82542]]
sources and to much smaller sources--than EPA's regulations do.
---------------------------------------------------------------------------
\12\ In its first phase, starting January 2, 2011, PSD
requirements for GHGs apply to sources that are required to seek a
PSD permit for non-GHG pollutants, and that also increase emissions
of GHG by at least 75,000 tpy CO2e. In its second phase,
starting July 1, 2011, PSD requirements for GHGs will also apply to
new sources that emit or with potential to emit at least 100,000 tpy
CO2e, and existing sources that emit or have the
potential to emit 100,000 tpy CO2e and that undertake a
modification that increases net emissions of GHGs by at least 75,000
tpy CO2e.
---------------------------------------------------------------------------
We note that there is nothing inherently problematic about a SIP
imposing PSD applicability, or applying other control requirements, as
broadly as a state might choose. SIPs may lawfully do so and EPA may
lawfully approve them in accordance with the provisions of section
110(a) of the CAA. Similarly, there is nothing inherently problematic
with a SIP failing to include any measures to limit the scope of its
control requirements. Even so, the SIP must provide for adequate
resources, and must do so on the appropriate schedule, as discussed
next.
2. State Assurances of Adequate Resources
Each of the states subject to this rule was also required to
include in its SIP adequate state ``assurances,'' in accordance with
CAA section 110(a)(2)(E)(i). This provision requires the SIP to
``provide * * * necessary assurances that the State * * * will have
adequate personnel, funding, and authority under State * * * law to
carry out such implementation plan* * *.'' EPA has implemented this
requirement in 40 CFR 51.280, which provides,
Each plan must include a description of the resources available
to the State and local agencies at the date of submission of the
plan and any additional resources needed to carry out the plan
during the 5-year period following its submission. The description
must include projections of the extent to which resources will be
acquired at 1-, 3-, and 5-year intervals.
These CAA and regulatory requirements concerning assurances apply to
the SIP as a whole, including the PSD program. Therefore, at the time
that the state submitted the PSD provisions of the SIP for EPA
approval, the SIP was required to include assurances that adequate
resources would be available to implement the SIP in its entirety,
including the PSD program.
As previously noted, the affected SIPs included expansive PSD
applicability provisions for newly regulated pollutants, without a
means to limit that applicability. Under these circumstances, state
assurances are needed to assure adequate resources in the event of an
expansion of the PSD program to new pollutants, even when this would
require a rapid and sizeable expansion of the resources dedicated to
the state PSD program, whether due to the large number of sources
emitting the new pollutant or any other reason. EPA has the authority
to define, under CAA section 110(a)(2)(E)(i), what assurances are
``necessary'' so that the state will have ``adequate'' resources. To be
sure, EPA does not read the assurances requirement to require that the
state should somehow hold in reserve large amounts of resources to
cover the possibility that the PSD program would undergo such a large
and rapid expansion. However, EPA does read the requirement to require
that the state have a plan for acquiring the requisite additional
amount of resources in the case of an expansion in PSD applicability.
Moreover, that plan should include an implementation schedule that
would be consistent with the timing of expansion in PSD applicability.
PSD expansion may occur quite rapidly because PSD requirements apply
immediately once they are triggered by subjecting a pollutant to
regulation. This is because of the CAA requirement that stationary
sources may not construct or modify unless they first have acquired a
permit. CAA section 165(a). That is, as soon as a pollutant is subject
to regulation--as will occur for GHGs on January 2, 2011--the
pollutant-emitting sources to which PSD then applies cannot lawfully
undertake construction or modification projects without first procuring
a PSD permit.
It is clear, however, that none of the SIPs affected by this action
include such a plan among their assurances. In the proposed Tailoring
Rule, EPA stated that at the time that the LDVR triggers PSD
applicability, if it triggers such applicability at the 100/250 tpy
level, then far greater numbers of sources will require permitting than
currently do. As a result, EPA added, the administrative burdens
associated with permitting small sources for affected state and local
permitting authorities would overwhelm the authorities. For each state,
EPA proposed to rescind approval of the part of the SIP that applies
PSD to sources below the Tailoring Rule thresholds, unless the state
demonstrated that it had adequate resources to permit at the lower
levels. During the comment period on this proposal, no authority
contested this understanding of the facts, none stated that they could
administer PSD at the 100/250 tpy levels, and none contested the
proposal on grounds that they have adequate resources. In the final
Tailoring Rule, EPA refined, on the basis of comments, the precise
extent of the administrative burden, but confirmed that the burden was
overwhelming and that states lacked adequate resources. In the final
Tailoring Rule, EPA requested that states submit letters within 60 days
of publication of the rule describing how they intended to implement
PSD for GHG-emitting sources.\13\ In those letters, none of the states
claimed they could, or intended to, implement the Tailoring Rule at the
statutory levels. From all this, it is clear that none of the states
had included in their state assurances an adequate plan to acquire
resources to administer the PSD program for their GHG-emitting sources
at the 100/250 tpy level.
---------------------------------------------------------------------------
\13\ The 60-day letters are available at http://www.epa.gov/NSR/2010letters.html.
---------------------------------------------------------------------------
It must be emphasized that there is nothing inherently problematic
with a SIP whose state assurances do not include the previously-
described plan to acquire additional resources. Only SIPs that lack any
constraints to limit PSD applicability for new pollutants to match
their resources must include such a plan.
3. Flaw in SIP
Based on the previous analysis, it is clear that the SIPs subject
to this action are flawed. They each are structured in a manner that
may impose PSD applicability on new pollutants in an unconstrained
manner, and yet they do not have a plan for acquiring resources to
adequately administer any large new components of the PSD program, and
to do so on the same schedule that sources may become subject to PSD.
As previously explained, the SIPs' unconstrained applicability is not
by itself a flaw. The flaw is the combination of that unconstrained
applicability and the failure of the SIP to plan for adequate resources
for that applicability, and do so on the appropriate time-table. In
short, the SIPs' PSD applicability provisions and their state
assurances are mismatched and therefore the SIP is flawed. As
previously discussed, EPA's recently promulgated GHG rules have
highlighted this flaw.
EPA notes that since the enactment of the PSD provisions, EPA has
periodically subjected pollutants to control for the first time,
thereby triggering PSD applicability. At the time the affected SIPs
were submitted and approved, this structural flaw could have been
recognized. That is, it could have been recognized that (i) the PSD
applicability provisions were essentially unconstrained, but that the
resources the state assured would be available were constrained; and
(ii) at some point in time, a pollutant could become newly regulated
that would expand PSD applicability to a point that would require
resources beyond what the state assured would be available. It bears
reiterating that EPA has discretion to interpret the CAA's SIP
requirements,
[[Page 82543]]
including what state assurances are required. In EPA's view, the
breadth of the affected SIPs' provisions concerning PSD applicability,
combined with the limited state assurances, constitutes a flaw.
C. Legal Mechanisms for EPA Action
Because the SIPs were flawed, EPA approval of them was in error.
Two mechanisms are available for addressing that error: The error
correction mechanism provided under CAA section 110(k)(6), 42 U.S.C.
section 7410(k)(6), or EPA's inherent general authority to reconsider
its own actions under CAA section 301(a), 42 U.S.C. section 7601(a),
read in conjunction with CAA section 110(k) and other statutory
provisions, and case law holding that an agency has inherent authority
to reconsider its prior actions.
1. Error Correction Under CAA Section 110(k)(6)
CAA section 110(k)(6) provides as follows:
Whenever the Administrator determines that the Administrator's
action approving, disapproving, or promulgating any plan or plan
revision (or part thereof), area designation, redesignation,
classification, or reclassification was in error, the Administrator
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Such determination and the basis thereof
shall be provided to the State and public.
The key provisions are that the Administrator has the authority to
``determine [ ]'' when a SIP approval was ``in error,'' and when she
does so, she may then revise the SIP approval ``as appropriate,'' in
the same manner as the approval, and without requiring any further
submission from the state. With this action, EPA is determining that
its action approving the PSD SIP provisions was ``in error'' due to the
mismatch, previously discussed, between the PSD applicability
provisions and the state assurances. EPA is further determining that
the appropriate action EPA can take--in light of EPA's proposal as part
of the proposed Tailoring Rule--to revise that prior action is to
rescind approval of the PSD program to the extent it applies PSD to
GHG-emitting sources below the Tailoring Rule threshold. Thus, EPA is
narrowing its approval of the PSD programs as indicated. EPA may
consider further action in the future.
a. Type of Error
These determinations are authorized under the CAA. First, approval
of the SIPs in light of the mismatch constitutes an ``error'' within
the meaning of CAA section 110(k)(6). As previously quoted, CAA section
110(k)(6) provides EPA with the authority to correct its own ``error,''
but nowhere does this provision or any other provision in the CAA
define what qualifies as ``error.'' Thus, the term should be given its
plain language, everyday meaning. Webster's II Dictionary defines an
``error'' as: ``(1) an act, assertion, or belief that unintentionally
deviates from what is correct, right or true, (2) the state of having
false knowledge . . . (4) a mistake . . .'' Webster's II New Riverside
University Dictionary 442 (Houghton Mifflin Co. 1988). Similarly, the
Oxford American College Dictionary 467--(2d ed. 2007) defines ``error''
as ``a mistake'' or ``the state or condition of being wrong in conduct
or judgment.'' These definitions are broad, and include all
unintentional, incorrect or wrong actions or mistakes.
The legislative history of CAA section 110(k)(6) is silent
regarding the definition of error, but the timing of the enactment of
the provision suggests a broad interpretation. The provision was
enacted shortly after the Third Circuit decision in Concerned Citizens
of Bridesburg v. U.S. EPA, 836 F.2d 777 (1987). In Bridesburg, the
court adopted a narrow interpretation of EPA's authority to
unilaterally correct errors. The court stated that such authority was
limited to typographical and other similar errors, and stated that any
other change to a SIP must be accomplished through a SIP revision. Id.
at 786. In Bridesburg, EPA determined that it lacked authority to
include odor regulations as part of a SIP unless the odor regulations
had a significant relationship to achieving a NAAQS, and so directly
acted to remove 13-year-old odor provisions from the Pennsylvania SIP.
Id. at 779-80. EPA found the previous approval of the provisions to
have been an inadvertent error, and so used its ``inherent authority to
correct an inadvertent mistake'' to withdraw its prior approval of the
odor regulations without seeking approval of the change from
Pennsylvania. Id. at 779-80, 785. After noting that Congress had not
contemplated the need for revision on the grounds cited by EPA, Id. at
780, the court found that EPA's ``inherent authority to correct an
inadvertent mistake'' was limited to corrections such as
``typographical errors,'' and that instead EPA was required to use the
SIP revision process to remove the odor provision from the SIP. Id. at
785-86.
When the court made its determination in Bridesburg in 1987, there
was no provision explicitly addressing EPA's error correction authority
under the CAA. In 1990, Congress passed CAA section 110(k)(6),
apparently for the purpose of overturning the Bridesburg opinion. This
is apparent because CAA section 110(k)(6) both (i) authorizes EPA to
correct SIP approvals and other actions that were ``in error,'' which,
as previously noted, broadly covers any mistake, and thereby contrasts
with the holding in Bridesburg that EPA's pre-section 110(k)(6)
authority was limited to correction of typographical or similar
mistakes; and (ii) provides that the error correction need not be
accomplished via the SIP revision or SIP call process, which contrasts
with the holding of Bridesburg requiring a SIP revision. Because
Congress apparently intended CAA section 110(k)(6) to overturn
Bridesburg, the definition of ``error'' in that provision should be
sufficiently broad to encompass the error that EPA asserted it made in
its approval action at issue in Bridesburg, which goes well beyond
typographical or other similar mistakes.
EPA has used CAA section 110(k)(6) in the past to correct errors of
a non-technical nature. For example, EPA has used CAA section 110(k)(6)
as authority to make substantive corrections to remove a variety of
provisions from federally approved SIPs that are not related to the
attainment or maintenance of NAAQS or any other CAA requirement. See,
e.g., ``Approval and Promulgation of Implementation Plans; Kentucky:
Approval of Revisions to the State Implementation Plan,'' 75 FR 2440
(Jan. 15, 2010) (correcting the SIP by removing a provision, approved
in 1982, used to address hazardous or toxic air pollutants); ``Approval
and Promulgation of Implementation Plans; New York,'' 73 FR 21,546
(April 22, 2008) (issuing a direct final rule to correct a prior SIP
correction from 1998 that removed general duties from the SIP but
neglected to remove a reference to ``odor'' in the definition of ``air
contaminant or air pollutant''); ``Approval and Promulgation of
Implementation Plans; New York,'' 63 FR 65557 (Nov. 27, 1998) (issuing
direct final rule to correct SIP by removing a general duty ``nuisance
provision'' that had been approved in 1984); ``Correction of
Implementation Plans; American Samoa, Arizona, California, Hawaii, and
Nevada State Implementation Plans,'' 63 FR 34,641 (June 27, 1997)
(correcting five SIPs by deleting a variety of administrative
provisions concerning variances, hearing board procedures, and fees
that had been approved during the 1970s).
[[Page 82544]]
EPA's approval of the PSD SIP provisions, in light of the mismatch
between those provisions and the state assurances, was ``in error''
within the meaning of CAA section 110(k)(6). Under the familiar Chevron
two-step framework for interpreting administrative statutes, an agency
must, under Chevron step 1, determine whether ``Congress has directly
spoken to the precise question at issue.'' If so, ``the court, as well
as the agency, must give effect to the unambiguously expressed intent
of Congress.'' However, under Chevron step 2, if ``the statute is
silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency's answer is based on a permissible
construction of the statute.'' Chevron U.S.A. Inc. v. NRDC, 467 U.S.
837, 842-43 (1984).
As previously discussed, the PSD SIPs were flawed due to the
mismatch between the PSD applicability provisions and the state
assurances. EPA's action approving the PSD SIPs in the face of that
flaw was ``in error'' under CAA section 110(k)(6) in accordance with
Chevron step 1. As previously discussed, ``error'' should be defined
broadly to include any mistake, and approval of a flawed SIP is a
mistake.
Even if the term ``error'' is not considered unambiguously to
encompass the mistake that EPA made in approving the PSD SIPs under
Chevron step 1, and instead is considered ambiguous on this question,
then under Chevron step 2 EPA has sufficient discretion to determine
that its approval action meets the definition of ``error.'' That is,
under CAA section 110(k)(6), both the breadth of the term ``error'' and
the authorization for EPA to ``determine[ ]''--which is a directive
that is inherently discretionary--when it made an error, point towards
EPA having sufficient discretion to identify the mismatch in the SIPs
as a flaw and to identify its action in approving the PSD SIPs in the
face of that mismatch as an error under that provision.
b. Narrowing of Approval
Under CAA section 110(k)(6), once EPA determines that its action in
approving the PSD SIPs was in error, EPA has the authority to correct
the error in an ``appropriate'' manner, and through the same process as
the original approval, but without requiring any further state
submission. The term ``appropriate'' is open-ended, and therefore
confers broad discretion upon EPA to fashion a reasonable type of
correction. More generally, CAA section 110(k)(6) authorizes EPA to
``determine[ ]'' that its action was in error, and does not direct or
constrain that determination in any manner. That is, the provision does
not identify any factors that EPA must, or may not, consider in making
the determination. This further indicates that this provision confers
broad discretion upon EPA.
EPA's action corrects the error by rescinding EPA's approval of the
PSD threshold provisions to the extent they apply PSD requirements to
sources of GHG emissions below the final Tailoring Rule thresholds.
Correcting the error in this fashion is appropriate because it narrows
the approval to the PSD requirements to the extent they apply to GHG-
emitting sources at or above the final Tailoring Rule thresholds. This
approach (i) renders the PSD applicability provisions consistent with
EPA regulations and (ii) solves the mismatch previously described by
assuring that SIP PSD applicability to GHG sources is consistent with
EPA's interpretation of the scope of the state assurances of adequate
resources for PSD administration.
Correcting the error in this fashion--narrowing the approval of
SIPs--is also consistent with the approach that the affected states are
taking to administer PSD to GHG-emitting sources. The states have
advised EPA that they are proceeding to develop SIP revisions to
implement the Tailoring Rule and thereby narrow their SIP PSD programs
to GHG-emitting sources at or above the Tailoring Rule thresholds.
EPA's record in the Tailoring Rule indicates that the states should
have adequate resources to implement their PSD program for GHG-emitting
sources at the Tailoring Rule thresholds. In contrast, no state has
informed EPA that it prefers to maintain its PSD applicability at the
100/250 tpy level and that it intends to acquire the additional
resources to do so.
At this time, EPA is not further addressing, and therefore is not
rescinding its approval of, the affected SIPs' PSD applicability
provisions to the extent they remain unconstrained in the manner in
which they incorporate newly regulated pollutants in respects other
than PSD applicability to GHG-emitting sources below the Tailoring Rule
thresholds. As a procedural matter, EPA did not propose to do so in the
Tailoring Rule proposal and EPA did not receive any comments indicating
that it should do so. In addition, CAA section 110(k)(6) gives EPA the
authority to make corrections ``as appropriate.'' This language
provides EPA with discretion to choose how to make corrections. The
current problem resulting from EPA's erroneous approvals of the SIPs in
question is limited to the regulation of GHG emissions, and the current
rule addresses this problem. The scope of this action does not
foreclose further action to address EPA's error in the future. An
agency may properly address an issue in step-by-step fashion. See,
e.g., Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d 455 (DC Cir.
1998), City of Las Vegas v. Lujan, 891 F.2d 927 (DC Cir. 1989). 75 FR
at 31544.
In accordance with CAA section 110(k)(6), EPA has conducted this
narrowing of approval through notice-and-comment rulemaking, which is
the same manner as EPA conducted the prior approval.
2. Reconsideration Under CAA Section 301 and Case Law
In the alternative to the error correction under CAA section
110(k)(6) discussed above, EPA is using its authority to reconsider its
prior approval actions in order to narrow its approval of the SIPs at
issue. This authority lies in CAA section 301(a), read in conjunction
with CAA section 110(k) and other statutory provisions, and case law
holding that an agency has inherent authority to reconsider its prior
actions.
EPA approved some of the SIP PSD provisions affected by this rule
prior to 1990, under the authority of CAA section 110 as it read prior
to amendment by the 1990 CAA Amendments. Prior to the amendments, CAA
section 110(a)(2) authorized EPA to ``approve or disapprove [a SIP], or
any portion thereof.'' EPA approved the rest of the SIP PSD provisions
affected by this rule after 1990, i.e., under the authority of CAA
section 110(k)(3)-(4) as added by the 1990 CAA Amendments. These
sections authorize EPA to approve a SIP submittal ``as a whole,''
``approve [the SIP submittal] in part and disapprove [it] in part,'' or
issue a ``conditional approval'' of a SIP submittal. CAA section
110(k)(3)-(4).
In approving the SIPs under either CAA section 110(a)(2) as it read
prior to 1990 or CAA section 110(k), EPA retained inherent authority to
revise that action. The courts have found that an administrative agency
has the inherent authority to reconsider its decisions, unless Congress
specifically proscribes the agency's discretion to do so. See, e.g.,
Gun South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989) (holding
that agencies have implied authority to reconsider and rectify errors
even though the applicable statute and regulations do not provide
expressly for such reconsideration); Trujillo v. General Electric Co.,
621 F.2d 1084, 1086 (10th Cir. 1980) (``Administrative agencies have an
inherent authority to
[[Page 82545]]
reconsider their own decisions, since the power to decide in the first
instance carries with it the power to reconsider'').
Section 301(a) of the CAA, read in conjunction with CAA section 110
and the case law just described, provides statutory authority for EPA's
reconsideration action in this rulemaking. Section 301(a) of the CAA
authorizes EPA ``to prescribe such regulations as are necessary to
carry out [EPA's] functions'' under the CAA. Reconsidering prior
rulemakings, when necessary, is part of `` [EPA's] functions'' under
the CAA--in light of EPA's inherent authority as recognized under the
case law to do so--and as a result, CAA section 301(a) confers
authority upon EPA to undertake this rulemaking.
EPA finds further support for its authority to narrow its approvals
in APA section 553(e), which requires EPA to give interested persons
``the right to petition for the issuance, amendment, or repeal of a
rule,'' and CAA section 307(b)(1), which expressly contemplates that
persons may file a petition for reconsideration under certain
circumstances (at the same time that a rule is under judicial review).
These authorizations for other persons to petition EPA to amend or
repeal a rule suggest that EPA has inherent authority, on its own, to
issue such amendment or repeal. This is because EPA may grant a
petition from another person for an amendment to or repeal of a rule
only if justified under the CAA, and if such an amendment or repeal is
justified under the CAA, then EPA should be considered as having
inherent authority to initiate the process on its own, even without a
petition from another person.
EPA recently used its authority to reconsider prior actions and
limit its prior approval of a SIP in connection with California
conformity SIPs. See, e.g., 68 FR 15720, 15723 (discussing prior action
taken to limit approvals); 67 FR 69139 (taking final action to amend
prior approvals to limit their duration); 67 FR 46618 (proposing to
amend prior approvals to limit their duration, based on CAA sections
110(k) and 301(a)). EPA had previously approved SIPs with emissions
budgets based on a mobile source model that was current at the time of
EPA's approval. Later, EPA updated the mobile source model. But, even
though the model had been updated, emissions budgets would continue to
be based on the older, previously approved model in the SIPs, rather
than the updated model. To rectify this problem, EPA conducted a
rulemaking that revised the previous SIP approvals so that the
approvals of the emissions budgets would expire early, when the new
ones were submitted by states and found adequate, rather than when a
SIP revision was approved. This helped California more quickly adjust
its regulations to incorporate the newer model. In this rule, EPA is
using its authority to reconsider and narrow its prior approval of SIPs
generally in the same manner as it did in connection with California
conformity SIPs.
V. Comments and Responses
In this section, we provide responses to comments we received on
the proposed Tailoring Rule on narrowing EPA's approval of some SIPs.
Several industry commenters (4095, 4106, 4118, 4691, 4870, 5083, 5058,
5131, 5133, 5137, 5140, 5179, 5181, 5278, 5317, 5713, 6414, 16411) and
state commenters (2729, 4019, 4866, 4989, 5039, 5084) object to our
proposal to narrow our approval of previously fully approved SIPs. One
industry commenter (4298) supports our proposal, though would like EPA
to take additional actions as well. An environmental commenter (5306)
also believes that EPA should accompany its proposed actions with a SIP
call.
A. Comments Regarding the Legal Mechanism for the Current Action
Commenters argued that neither CAA section 110(k)(6) error
correction authority nor EPA's general authority under CAA 301(a) and
APA 553(e) support the action EPA now takes. The arguments opposing
both legal mechanisms for this rule include the following:
The EPA's CAA section 110(k)(6) justification is flawed
because section 110(k)(6) authority is limited to the correction of
technical or clerical errors made in a SIP approval and does not allow
any unilateral revision by EPA of substantive provisions or any changes
to the nature or terms of a SIP that EPA has approved in the past.
(2797, 4019, 4866, 4870, 4989, 5039, 5083, 5133, 5131, 5140, 5179,
5181, 5279, 5317, 6414)
The type of action EPA wishes to undertake can only be
taken through a SIP call under section 110(k)(5) of the CAA, although
that section is not applicable in this situation because SIPs that
incorporate the CAA applicability thresholds are not inadequate to
``comply with any requirement of the Act.'' (4106, 4691, 4870, 5058,
5140, 5181, 5278, 5317, 6414)
The EPA's retroactive limitation on its prior approval of
the SIPs is not being done to correct a mistake--even EPA does not
claim its approvals were in error at the time it promulgated them.
Rather, the Agency is trying to change the SIPs now to avoid
substantive and timing problems it has created by its own deliberate
actions. (4870, 5058, 5131, 5140, 5181, 5278, 5317, 6414)
The EPA is not proposing to correct any ``error'' ``in the
same manner'' as it made its approval. The proposed Tailoring Rule in
effect proposes a blanket narrowing on all past approvals; EPA is not
issuing an individualized new proposed approval (or disapproval) action
for each SIP that had been the subject of an individual EPA notice-and-
comment SIP approval proceeding. A SIP call is the proper procedure to
address any alleged inadequacies in state resources. (2797, 4989, 5181,
5317)
In Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777
(3d Cir. 1987), the court invalidated EPA's attempt to rescind approval
of a SIP revision that EPA had approved 13 years earlier on grounds
that EPA's original approval was in error. The Court explained that in
fact the SIP approval was no longer consistent with EPA policy due to
an intervening change in that policy, and that the SIP approval was not
an inadvertent mistake that would justify a unilateral change in
disregard of procedural requirements for SIP revisions. Some commenters
state that in order to be a mistake under Bridesburg, the original SIP
approval must have been contrary to agency policy at the time of the
SIP approval. One commenter also cited Detroit Edison Co. v. EPA, 496
F.2d 244, 248-49 (6th Cir. 1974) in support of its argument that a
substantive change to a SIP is a change in policy rather than a
correction of an inadvertent mistake, and EPA cannot implement such a
policy change in a SIP unilaterally (a proposed clarification by EPA of
a SIP several months after promulgation was not in fact a clarification
but a revision because it effected substantive change). (4870, 5080,
5140, 5181, 5278, 5317)
The EPA's invocation of section 110(k)(6) establishes a
troubling precedent that undermines the role of states under the CAA.
The EPA's approach is unguided by any standards, criteria, or
precedent. States and regulated sources would no longer have confidence
that they could rely on approved SIPs, safe from EPA's revision of
those SIPs whenever the Agency decides--on any grounds it chooses or no
grounds at all--that its prior approval had been an ``error.'' Under
this interpretation of section 110(k)(6), EPA could dispense entirely
with SIP calls under section 110(k)(5) and the states' role in SIP
revisions, which was clearly not what Congress had in mind when it
enacted section 110(k). The EPA's approach seriously undermines the
carefully crafted federal-state
[[Page 82546]]
partnership the CAA creates, which assigns states the primary role in
designing SIPs, while giving EPA a more limited, reviewing role. (4870,
5039, 5140, 5181, 5278, 5317)
The EPA has overstated its authority under CAA section
301(a). The District of Columbia Circuit (DC Circuit) has observed that
CAA section 301(a)(1) ``does not provide the Administrator with carte
blanche authority to promulgate any rules, on any matter relating to
the CAA, in any manner that the Administrator wishes.'' Where the CAA
includes express provisions--such as section 110(k)(5) (the SIP call
provision)--EPA is required to follow those provisions. If there was a
mistake in prior SIP approvals as EPA contends, section 110(k)(5) is
EPA's sole and exclusive mechanism for seeking to correct a SIP that
has been determined to be inadequate. (4019, 4866, 4870, 5058, 5083,
5131, 5140, 5181, 5278, 5317, 5714)
The EPA's invocation of 5 U.S.C. 553(e) is legally
indefensible. The EPA has mentioned no outstanding petition for EPA to
revisit its PSD SIP approvals, so section 553(e) appears to be
inapposite. In addition, CAA section 307(d)(1)(B) and the penultimate
sentence of section 307(d)(1) expressly state that the provisions of
section 553 do not apply to ``the promulgation or revision of an
implementation plan by the Administrator'' under CAA section 110(c),
which, in practical effect, is the action EPA proposes here. Even where
section 553(e) applies, it merely directs agencies to allow parties to
seek revisions of rules; it plainly does not permit agencies to
disregard procedural requirements--whether under the APA or under
organic statutes such as the CAA--that agencies must follow in
effecting any such revisions. (5317, 5714)
As previously discussed, EPA's error correction authority under CAA
section 110(k)(6) and, in the alternative, CAA section 301, read in
light of EPA's general authority to reconsider its actions, support the
action EPA now takes to narrow its prior approval of some states' SIPs.
The SIP call process is a distinct and separate authority that Congress
has given to EPA for use when EPA determines that a current SIP is
substantially inadequate to attain or maintain compliance with the CAA
requirements. This process is a means for EPA to require state action.
See, e.g., Sierra Club v. Georgia Power Company, 443 F.3d 1346, 1348
(11th Cir. 2006) (describing the SIP call process generally as a means
to state action). Congress explicitly laid out EPA's error correction
authority under CAA section 110(k)(6), as a means for EPA to
unilaterally reconsider its own prior actions without using a SIP call.
EPA's general reconsideration authority also applies to EPA's
reconsideration of its own actions.
Sections 110(k)(5) and (6) of the CAA are intended to address
different types of problems with SIPs. Section 110(k)(6) targets
``error[s]'' that EPA made at the time it approved the SIP. Thus, EPA
may rely on CAA section 110(k)(6) when EPA's own action--e.g., its
original approval of a state's SIP--is erroneous. In contrast, section
110(k)(5) targets ``substantial [ ] inadequa[cies]'' that prevent the
SIP's compliance with CAA requirements and that exist in the SIP at the
time of the SIP call regardless of when the substantial inadequacy
first arose. Thus, a SIP whose approval was appropriate at the time but
later may be shown to contain substantial inadequacies could be amended
by the state using a SIP call under CAA section 100(k)(5), but could
not be corrected by EPA under CAA section 110(k)(6).
Even so, many circumstances may arise where either a CAA section
110(k)(6) correction or a section 110(k)(5) SIP call could be
appropriate. These are situations in which EPA erred in approving a SIP
because the SIP was flawed, and that flaw constitutes a substantial
inadequacy that prevents the SIP's compliance with a CAA requirement.
Under these circumstances, EPA may choose between CAA section 110(k)(6)
or section 110(k)(5), and nothing in either of those provisions
precludes EPA from choosing to use the other one in the case of an
overlap. Section 110(k)(6) of the CAA provides that ``[w]henever the
Administrator determines that [a specified action] was in error, the
Administrator may * * * revise such action* * *.'' This provision
grants discretion to the Administrator to make the indicated
determination (including the timing of the determination) and then
grants the Administrator the discretion (``may'') to revise the action.
No other provision in CAA section 110(k)(6), and none in section
110(k)(5), precludes that discretion in a situation in which the
Administrator could have instead relied on section 110(k)(5). By the
same token, CAA section 110(k)(5) provides that ``[w]henever the
Administrator finds that the applicable implementation plan for any
area is substantially inadequate * * * to * * * comply with any
requirement of [the CAA], the Administrator shall require [a SIP
revision].'' This provision also grants discretion to the Administrator
to make the indicated finding (including the timing of the finding)
that would trigger the requirement for a SIP revision. No other
provision in CAA section 110(k)(5) mandates that the Administrator make
the finding (and thereby trigger the requirement for a SIP revision)
even if the Administrator could otherwise rely on section 110(k)(6).
See also New York Public Interest Research Group v. Whitman, 321 F.3d
316, 330-31 (2d Cir. 2003) (finding that opening phrase ``Whenever the
Administrator makes a determination'' in CAA section 502(i)(1) grants
EPA ``discretion whether to make a determination''); Her Majesty the
Queen in Right of Ontario v. U.S. E.P.A., 912 F.2d 1525, 1533 (DC Cir.
1990) (finding ``whenever'' in CAA section 115(a) ``impl[ied] a degree
of discretion'' in whether EPA had to make an endangerment finding).
Indeed, if, as commenters suggest, section 110(k)(5) were viewed as
predominating over section 110(k)(6), then there would be very few
circumstances under which section 110(k)(6) would be available because
in many instances, the type of error that the Administrator would see
fit to correct under section 110(k)(6) would be one that would cause a
SIP to be ``substantially inadequate'' to meet CAA requirements. Such a
narrow role for section 110(k)(6) is inconsistent with its plain
language, which, again, authorizes its usage ``whenever'' the
Administrator ``determines'' that EPA's action was in ``error.'' As
previously noted, the term ``error'' should be defined broadly to
include any unintentional mistake, and the other quoted terms
inherently provide discretion.
In addition to Congress's explicit grant of error correction
authority, the DC Circuit recently affirmed EPA's inherent authority to
reconsider its own actions in New Jersey v. EPA, 517 F.3d 574 (DC Cir.
2008), where it explained that an agency normally can change its
position and reverse a prior decision. However, the Court added that
``when Congress has provided a mechanism capable of rectifying mistaken
actions * * * it is not reasonable to infer authority to reconsider
agency action.'' New Jersey, 517 F.3d at 583. In that case, the Court
did find that Congress had, in fact, limited EPA's ability to remove
sources from the list of HAP source categories, once listed, by
requiring EPA to follow the specific delisting process at CAA section
112(c)(9).
In the present case, EPA believes that it has the general authority
under the CAA to reconsider its previous actions. Congress has also
added the specific provision CAA section 110(k)(6), which authorizes
correction of errors. EPA
[[Page 82547]]
believes that this error correction provision authorizes this action.
If section 110(k)(6) has the breadth that EPA believes it has, then it
may take the place of EPA's inherent authority to reconsider prior
erroneous actions. If section 110(k)(6) has a more limited breadth and
does not apply to this action, then EPA continues to have inherent
authority to make corrections beyond what section 110(k)(6) authorizes,
including this action.
As previously discussed, EPA finds support for its general
authority to reconsider under CAA section 301(a). However, we are not
relying on CAA section 301(a) as carte blanche authority to promulgate
any rules; rather, we are relying on CAA section 301(a) because this
action carries out EPA's functions, to reconsider its action under CAA
section 110 in approving SIP revisions, as authorized under the case
law previously cited. Likewise, EPA finds some support for its
authority in APA section 553(e). However, EPA is not relying on APA
section 553(e) as direct authority for this action, under which EPA is
correcting an error. Rather, EPA considers APA section 553(e) to
support the proposition -- also supported by case law--that EPA has
inherent authority to correct an error. Similarly to the APA, CAA
section 307(b)(1), which contemplates petitions for reconsideration by
EPA of actions taken on SIP submissions, supports the proposition that
EPA has inherent authority to reconsider prior decisions that were in
error.
Commenters' concerns that EPA's approach to this rule seriously
undermines the CAA federal-state partnership and the primary role given
the states in the SIP development process are unfounded. This rule
simply corrects an error in accordance with CAA section 110(k)(6); the
primary role of states and the nature of the federal-state partnership
certainly remains intact. States remain the developers and drafters of
the SIPs; EPA remains the arbiter of whether the submitted SIP
provisions meet necessary requirements, and thus should be part of the
SIP. This federal-state partnership cannot preclude EPA from correcting
errors in its own SIP approvals, and the partnership is not threatened
by such error corrections. In addition, in accordance with CAA section
110(k)(6), EPA exercises its authority under this provision through
notice and comment rulemaking, in which states have the opportunity to
comment in order to shape the outcome. Historically, EPA has exercised
its authority under CAA section 110(k)(6) very sparingly and
judiciously. In the current case, EPA has taken this action after close
communication with the states.
As previously discussed, the SIPs addressed here each contained a
mismatch between their PSD applicability provisions and their state
assurances of adequate resources. EPA erred in approving those SIPs.
Since this error recently became apparent, EPA is now promptly taking
steps to correct the error in a manner it deems appropriate. We find
that use of our CAA section 110(k)(6) authority is appropriate because
we are able to rectify the problem with the SIP without the need for
state action, and because this approach provides the most efficient
means for making the correction. Importantly, however, EPA is not
basing its error correction on a change in its approach to an old
policy, but rather on a flaw in the SIP that existed at the time of
EPA's action on the SIP but which has only recently become apparent.
Section 110(k)(6) of the CAA is available to correct any error in a
SIP; EPA disagrees with the commenters who state that this provision
may only be used for technical or clerical errors. As previously
discussed, the text of CAA section 110(k)(6) applies the provision
broadly to any mistake, and does not limit the provision's
applicability to only technical or clerical errors. Congress's passage
of CAA section 110(k)(6) in 1990 in fact indicated Congress's intent to
reinforce EPA's broad authority to unilaterally correct any errors in
SIP approvals, coming as it did after the Third Circuit adopted a
narrow interpretation of error correction authority in Concerned
Citizens of Bridesburg v. U.S. EPA, 836 F.2d 777 (1987).
Conversely, commenters' concerns that this rule sets a troubling
precedent because it is unguided by any standards, criteria or
precedent are unfounded. This rule is based on a flaw in the relevant
SIPs and EPA's error in approving the SIPs with that flaw. EPA's
application of CAA section 110(k)(6) is, by the terms of that
provision, limited to an error correction, and this action does not go
beyond that limit.
EPA conducted notice and comment on the approval-narrowing for each
relevant SIP. This notice and comment process, followed by the issuance
of the final rule, corrects the errors in these SIPs in the same manner
that EPA previously approved the SIPs. EPA also made an individualized
determination regarding each affected SIP that the SIP contains a
mismatch between its PSD applicability and state assurances provisions.
For each SIP, this mismatch has been made evident, as previously
discussed, by (i) EPA's finding in the Tailoring Rule that under their
current SIPs, the states would be required to process an enormous
number of PSD permits for small GHG-emitting sources, which would
overwhelm state resources; and (ii) the fact that no state has objected
to this finding and asserted that it does have adequate resources, or
that it previously assured EPA it would have adequate resources, for
this purpose.
EPA's narrowing of approval amounts to a revision to the federal
SIP, but that is inherent in its ability to correct its SIP action
under CAA section 110(k)(6). EPA is not changing the state law
component of the SIP, which remains fully state enforceable.
B. Comments on Potential Triggering of Anti-Backsliding Provisions
Some commenters expressed concern that anti-backsliding provisions
would prevent revision of SIPs to increase the significance threshold
for GHG emissions. Commenters were concerned that the EPA's approach to
ask states to quickly revise their SIPs to comport with the increased
significance thresholds is likely to be challenged by activist groups
citing the CAA's anti-backsliding provisions, which limit relaxation in
certain rules. Under EPA's interpretation of PSD applicability, once
the LDVR requires PSD to apply to GHGs, the existing thresholds
contained in SIPs could be alleged by activist groups to become binding
on GHGs under the anti-backsliding arguments that these groups are
currently advancing in various court cases. Thus, even if a state
wanted to revise its regulations similarly to the federal Tailoring
Rule and thereby relax the threshold, the anti-backsliding provision
might prevent it. (5140, 5181, 5278). One commenter was also concerned
more generally that anti-backsliding rules prevent EPA from
``adjust[ing] greenhouse gas levels'' under the Tailoring Rule. (5713).
None of these comments raised objections to this action narrowing
EPA's prior approval of SIPs. Thus, it is not necessary to address
these comments here. However, to the extent the concern expressed in
these comments could have been raised by changes to SIPs resulting from
EPA's narrowing of its prior approval, we choose to address the
comments here in the interest of greater responsiveness.
While many commenters did not clarify which CAA provisions they
considered ``anti-backsliding provisions'', they most likely meant to
refer to CAA sections 110(l), 110(n)(1), or 193. However, the current
rule does not violate any of these provisions.
[[Page 82548]]
Under CAA section 193, EPA may only modify any ``control
requirement'' applicable to a nonattainment area that was required or
in effect prior to November 15, 1990 if ``the modification insures
equivalent or greater emission reductions of such air pollutant.''
These provisions of section 193 apply to controls for pollutants for
which an area is designated nonattainment. No area of the country is
designated nonattainment for GHGs. This rule prevents certain sources
or modification projects that are not currently subject to PSD
requirements from becoming subject to PSD due to their emissions of
GHGs on January 2, 2010 when GHGs will become ``subject to regulation''
for purposes of the PSD program. GHGs are not currently subject to
regulation under the PSD program. Furthermore, the PSD program does not
require emission offsets for new or modified major sources, and EPA
does not consider the PSD program to achieve ``emissions reductions''
for purposes of section 193. Rather, the program merely limits future
emissions growth. Thus, section 193 would not limit alteration of a PSD
program because any revised program would meet the statutory test.
Therefore, the current rule does not violate CAA section 193.
CAA section 110(l) provides that EPA shall not approve a SIP
revision ``if the revision would interfere with any applicable
requirement concerning attainment and reasonable further progress (as
defined in [CAA section 171]), or any other applicable requirement of
this chapter.'' CAA section 171 defines ``reasonable further progress''
as ``such annual incremental reductions in emissions of the relevant
air pollutant as are required by this part or may reasonably be
required by the Administrator for the purpose of ensuring attainment of
the applicable national ambient air quality standard by the applicable
date.'' The current rule does not approve a SIP revision. The current
rule also would not interfere with attainment of any NAAQS, or with any
other requirement of the CAA.
CAA section 110(n)(1) states that a provision that was in a SIP
prior to November 15, 1990 may only be changed if it is ``approved or
promulgated by [EPA] pursuant to this chapter.'' The current rule is
being approved by EPA pursuant to this chapter. The procedure of
approval is pursuant to the CAA, and the rule's substance does not
violate CAA section 110(l) or any other CAA provision.
CAA section 172(e), which was cited specifically by one commenter,
applies to EPA action to ``relax a [NAAQS] after November 15, 1990.''
Since GHGs are not a NAAQS pollutant and this rule does not change any
NAAQS standard, this provision is not applicable to the current rule.
C. Comments on Persisting Practical Difficulties at the State Level
EPA received comments that raised concern that EPA is ignoring the
fact that it will take time for the states to amend their laws and
regulations to accommodate the revised applicability thresholds.
Commenters expressed concern that it will be of little help for EPA to
quickly amend the relevant SIPs because states will still be bound to
implement their underlying programs until corrections can be made. For
sources, this means no relief from the statutory thresholds for a
lengthy time after GHGs become regulated. (4019, 4095, 4866, 5080,
5083, 5084, 5131, 5133, 5140, 5179, 5278, 5317, 16411)
After this action is published and becomes effective, federal law
will not require affected states to issue PSD permits for GHGs emitted
at levels below the Tailoring Rule thresholds. Thus, sources in these
states emitting GHGs below the Tailoring Rule thresholds will not be
federally required to obtain a PSD permit for those emissions.
No action by EPA can amend state law requirements, or relieve
emitters of responsibilities under state law. However, most states
affected by this rule have already begun the process of amending their
state regulations to incorporate the Tailoring Rule thresholds. As
previously noted, almost all states are on track to have changed their
state law to incorporate the Tailoring Rule thresholds by January 2,
2011 or very shortly thereafter. EPA encourages states to continue to
pursue this process. Once states change their state law to incorporate
the Tailoring Rule thresholds, then both the state law and federal law
permitting requirements will be resolved. States can then process their
revised state laws into SIP revisions and submit them for approval. In
the proposed GHG PSD SIP Call preamble, EPA included recommendations
for some states to streamline their SIP development processes; those
recommendations could be used here. In the same proposal, EPA
encouraged states to submit their SIP revisions for parallel
processing, and thereby speed EPA approval. EPA recognizes that it may
take some months to receive EPA approval of the SIP revision, but
during this time, the State and Federal law will already each have been
changed. This rule thus helps ensure that sources emitting GHGs at
below-Tailoring Rule levels will have relief from GHG permitting
requirements as early as possible.
D. Comments on Preferred Alternative Courses of Action
EPA received comments advocating alternate courses of action to
address SIPs with the 100/250 tpy thresholds for GHGs. These comments
include the following:
If EPA wishes to pursue its current regulatory strategy,
it could amend the minimum PSD SIP elements in 40 CFR 51.166 and allow
states to develop and submit SIP revisions in accordance with those new
provisions. (5182, 5317)
The EPA should exercise all available legal authority to
ensure that SIPs come into conformity with the Tailoring Rule. Instead
of taking no action other than to limit approval of SIPs, EPA should
mandate or strongly encourage states to revise their PSD rules to
reflect the higher thresholds. This could be accomplished through an
expedited SIP call or by conditioning section 105 grant funding on
appropriate revisions to the PSD rules in SIP-approved states. (4691)
An industry commenter (4298) supports EPA's efforts to
narrow or conform its prior approvals through CAA sections 301(a)(1)
and 110(k)(6) with respect to applicability thresholds. However, the
commenter believes EPA should take affirmative steps to ensure that
states immediately either revise their regulations to raise existing
lower thresholds or demonstrate that they have adequate resources and
funding to manage their programs utilizing those existing lower
thresholds. The commenter also believes that EPA should not finalize
any action that would trigger GHG permitting until each state program
has been amended (4298).
An environmental group commenter (5306) believes that EPA
and the states should collaborate on an expeditious, smooth transition
in carrying out obligations to address GHGs under the PSD programs. The
commenter believes it is reasonable for EPA to call for a SIP revision
under section 110(k)(5) with an expeditious deadline for states to
submit corrective plan revisions. Further, according to the commenter,
EPA can ease state adoption of PSD permit program revisions and
expedite EPA's own review and approval of the states' adjustments by
adopting model guidelines to help inform state rulemaking. The
commenter recommends that EPA should promptly start the process with
the aim to complete it by the end of 2010.
[[Page 82549]]
As previously noted, EPA is strongly encouraging states to amend
their SIP requirements to conform to the PSD thresholds established in
the final Tailoring Rule, and this rule is consistent with such action.
In fact, many states have already begun the process of amending state
regulations and submitting those changes to EPA for approval. EPA is
working closely with many states to help complete this process as
expeditiously as possible. This close interaction obviates the need for
guidelines on how states might amend their laws. EPA's narrowing of our
prior approval of some SIPs is intended to assure that at least the
federal law component of these SIPs will, in essence, reflect the
Tailoring Rule thresholds, since not all states whose SIPs will cover
GHGs on January 2, 2011 will be able to amend their SIP thresholds by
that date.
EPA does not feel that a SIP call would provide any additional
benefit over the current action. Since the affected states are already
making efforts to change their state laws and amend their SIPs, and
have already informed EPA about their plans to make these changes in a
time-effective manner, a SIP call would not spur any action that is not
already occurring.
Neither this action nor the Tailoring Rule triggered GHG permitting
for any state. The Light Duty Vehicle Rule, in conjunction with the
operation of the Clean Air Act, has already triggered the applicability
of PSD to GHG emitting sources.
VI. Effective Date
This rule is being issued under CAA Sec. 307(d)(1)(V). CAA section
307(d) specifies that rules issued under its provisions are not subject
to APA section 553. Thus, the 30-day delay in effective date from the
date of signature required under the APA does not apply. In addition,
even if APA section 553 were to apply, APA section 553(d) provides an
exception for any action that grants or recognizes an exemption or
relieves a restriction. Since the effect of this rule will be to
relieve many small sources (and permitting authorities) from certain
PSD obligations, EPA believes that an immediate effective date is
consistent with the purposes under APA section 553(d). EPA believes
there is good cause for an immediate effective date due to the
regulatory confusion that would result if states were federally
required to implement PSD GHG permitting at only the statutory
thresholds starting on January 2, 2010. In addition, since this is not
a major rule under the Congressional Review Act, the 60-day delay in
effective date required for major rules under the CRA does not apply.
This rule is thus effective immediately.
VII. Statutory and Executive Orders
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.
Instead, this action will significantly reduce costs incurred by
sources and permitting authorities relative to the costs that would be
incurred if EPA did not revise this rule. In the final Tailoring Rule,
EPA stated that based on its GHG threshold data analysis, it estimated
that over 80,000 new and modified facilities per year, nationally,
would be subject to PSD review based on applying a GHG emissions
threshold of 100/250 tpy using a CO2e metric. This was
compared with the 280 PSD permits currently issued per year. Thus,
without the final Tailoring Rule, the administrative burden for
permitting GHG emissions would increase 280-fold, an unmanageable
increase. The current action takes further steps to implement the
burden-reduction implemented by the final Tailoring Rule.
In addition, OMB has previously approved the information collection
requirements contained in the existing regulations for PSD (see, e.g.,
40 CFR 52.21) under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. and has assigned OMB control number 2060-0003. The
OMB control numbers for EPA's regulations in 40 CFR are listed in 40
CFR part 9.
C. Regulatory Flexibility Act
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the APA 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 final action on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. 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.
After considering the economic impacts of this final rule on small
entities, I certify that this final action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives which ``minimize any significant
economic impact of the * * * rule on small entities.'' 5 U.S.C. 603 and
604. Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule.
We have therefore concluded that this final rule will relieve the
federal regulatory burden for most affected small entities associated
with the major PSD permit programs for new or modified major sources
that emit GHGs, including small businesses, in the affected states.
This is because this rule narrows its approval of SIPs in affected
states so as to raise the approved PSD applicability thresholds for
sources that emit GHGs. As a result, the program changes provided in
this rule are not expected to result in a significant economic impact
on a substantial number of small entities.
D. Unfunded Mandates Reform Act
This rule does not contain a federal mandate that may result in
expenditures of $100 million or more for state, local, and tribal
governments, in the aggregate, or the private sector in any 1 year. No
state will have an increased burden as a result of this rule; any
burden related to amending state SIPs to incorporate different GHG
emissions thresholds resulted from the final Tailoring Rule, not the
current rule. Thus, this rule is not subject to the requirements of
sections 202 or 205 of Unfunded Mandates Reform Act (UMRA).
[[Page 82550]]
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This rule is
expected to result in cost savings and an administrative burden
reduction for all permitting authorities and permittees in the affected
states, including small governments.
E. Executive Order 13132--Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This final rule will ultimately
simplify and reduce the burden on state and local agencies associated
with implementing the PSD permit program, by ensuring that, in affected
states, a source whose GHG emissions are below the final Tailoring Rule
thresholds will not have to obtain a PSD permit under federal law.
Thus, Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicited comments on the proposed rule
from state and local officials. EPA has also consulted with the
National Association of Clean Air Agencies and representatives from
some individual states in developing this rule.
F. Executive Order 13175--Consultation and Coordination With Indian
Governments
Subject to Executive Order 13175 (65 FR 67249, November 9, 2000)
EPA may not issue a regulation that has tribal implications, that
imposes substantial direct compliance costs, and that is not required
by statute, unless the federal government provides the funds necessary
to pay the direct compliance costs incurred by tribal governments, or
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.
EPA has concluded that this action may have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal government, nor preempt tribal law. There are no tribal
authorities currently issuing major NSR permits; however, this may
change in the future.
EPA consulted with tribal officials early in the process of
developing the final Tailoring Rule regulation, which the current rule
helps to implement, to allow them to have meaningful and timely input
into its development. Prior to publishing the proposed Tailoring Rule,
EPA published an advance notice of proposed rulemaking (ANPR) that
included GHG tailoring options for regulating GHGs under the CAA. (73
FR 44354, July 30, 2008). As a result of the ANPR, EPA received several
comments from tribal officials on differing GHG tailoring options
presented in the ANPR which were considered in the proposed Tailoring
Rule and final Tailoring Rule. Additionally, EPA also specifically
solicited comment from tribal officials on the proposed Tailoring Rule
(74 FR 55292, October 27, 2009) in which the actions which EPA now
takes were first proposed.
G. Executive Order 13045--Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 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 Executive 492 Order has the potential to influence the regulation.
This action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211--Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse energy effects because this
action would not create any new requirements for sources in the energy
supply, distribution, or use sectors.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has concluded that it is not practicable to determine whether
there would be disproportionately high and adverse human health or
environmental effects on minority and/or low income populations from
this rule. This rule is necessary in order to allow for the continued
implementation of permitting requirements established in the CAA.
Specifically, without this rule, the affected states' CAA PSD
permitting programs would become overwhelmed and unmanageable by the
untenable number of GHG sources that would become newly subject to
them. This would result in severe impairment of the functioning of
these programs with potentially adverse human health and environmental
effects nationwide. Under this rule and the findings under the final
Tailoring Rule, EPA is ensuring that the affected states' CAA
permitting programs continue to operate by narrowing their
applicability to the maximum number of sources the programs can
possibly handle. This approach is consistent with congressional intent
as it phases in applicability, starting with the largest sources
initially, and then other sources over time, so as not to overwhelm
state permitting programs. By doing so, this rule allows for the
maximum degree of environmental protection possible while providing
regulatory relief for the unmanageable burden that would otherwise
exist. Therefore, we believe it is not practicable to identify and
address disproportionately high and adverse human health or
environmental effects on minority populations and low
[[Page 82551]]
income populations in the United States under this final rule, though
we do believe that this rule will ensure that states can continue to
issue PSD permits to significant sources of air pollution.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by
SBREFA, generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the
Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2). This rule will be effective December 30, 2010.
L. Judicial Review
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 narrowing EPA's previous approvals of SIPs in 24 states
to correct a flaw in those SIPs is ``nationally applicable'' within the
meaning of 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. Moreover, in this rule, EPA is applying uniform
principles for each affected state in this rule. At the core of this
rulemaking is EPA's recognition that when it approved each of the
affected SIPs' PSD applicability provisions, it did so in the face of a
mismatch--common to each SIP--between the breadth of those provisions
and the scope of the resource assurances the states provided. EPA is
now addressing this flaw in numerous SIPs across the country through
the CAA section 110(k)(6) error correction provisions. EPA's analytical
approach for each SIP is the same, its determination that each SIP was
flawed and therefore that EPA erred in its approval of each SIP is the
same, and EPA's remedial action of rescinding its previous approval of
part of the SIP and thereby narrowing its approval of the SIP is the
same. 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 in
numerous judicial circuits across the country.
For similar reasons, this rule is based on determinations of
nationwide scope or effect. EPA uses a uniform legal interpretation in
all the affected States across the country; for the same reasons in
each case, EPA is determining that each SIP was flawed and that EPA
therefore erred in approving it. Similarly, EPA is determining that the
appropriate remedial action is to rescind its approval in part and
thereby narrow its approval, and this too is the same for each state.
Because the states are spread across the nation, each of these
determinations is nationwide in scope or effect. 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, any petitions for judicial review of this action must be
filed in the United States Court of Appeals for the District of
Columbia Circuit by February 28, 2011. Any such judicial review is
limited to only those objections that are raised with reasonable
specificity in timely comments. Filing a petition for reconsideration
by the Administrator of this final rule does not affect the finality of
this rule for the purposes of judicial review nor does it extend the
time within which a petition for judicial review may be filed, and
shall not postpone the effectiveness of such rule or action. Under
section 307(b)(2) of the Act, the requirements of this final action may
not be challenged later in civil or criminal proceedings brought by us
to enforce these requirements. Pursuant to section 307(d)(1)(V) of the
Act, the Administrator determines that this action is subject to the
provisions of section 307(d). Section 307(d)(1)(V) provides that the
provisions of section 307(d) apply to ``such other actions as the
Administrator may determine.'' This action finalizes elements of a
previous proposed action--the Prevention of Significant Deterioration
and Title V Greenhouse Gas Tailoring Rule Proposed Rule (74 FR 55292,
October 27, 2009).
VIII. Statutory Authority
The statutory authority for this action is provided by sections
101, 110, and 301 of the CAA as amended (42 U.S.C. 7401, 7410, and
7601). This action is also subject to section 307(d) of the CAA (42
U.S.C. 7407(d)).
List of Subjects in 40 CFR Part 52
Administrative practice and procedure, Air pollution control,
Carbon dioxide, Carbon dioxide equivalents, Environmental protection,
Greenhouse gases, Hydrofluorocarbons, Incorporation by reference,
Intergovernmental relations, Methane, Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping requirements, Sulfur hexafluoride.
Dated: December 23, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I of the Code
of Federal Regulations is amended as set forth below.
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart B--Alabama
0
2. Section 52.53 is revised to read as follows:
Sec. 52.53 Approval Status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Alabama's plans for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977. In addition, continued satisfaction of the requirements of Part D
for the ozone portion of the SIP depends on the adoption and submittal
of RACT requirements by July 1, 1980 for the sources covered by CTGs
issued between January 1978 and January 1979 and adoption and submittal
by each subsequent January of additional RACT requirements for sources
covered by CTGs issued by the previous January.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas
[[Page 82552]]
(GHGs) emissions, the Administrator approves that application only to
the extent that GHGs are ``subject to regulation'', as provided in this
paragraph (b), and the Administrator takes no action on that
application to the extent that GHGs are not ``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
EPA-approved Alabama Department of Environmental Management (ADEM)
Rules 335-3-14-.04(1)(d) thru (i) and 335-3-14-.04(2)(u)) and a
significant net emissions increase (as defined in EPA-approved Alabama
Department of Environmental Management (ADEM) Rules 335-3-14-.04(2)(c)
and 335-3-14-.04(2)(w)) occur. For the pollutant GHGs, an emissions
increase shall be based on tpy CO2e, and shall be calculated
assuming the pollutant GHGs is a regulated NSR pollutant, and
``significant'' is defined as 75,000 tpy CO2e instead of
applying the value in Alabama Department of Environmental Management
(ADEM) Rules 335-3-14-.04(2)(w).
Subpart F--California
0
3. Section 52.223 is amended by adding paragraphs (f), (g), and (h) to
read as follows:
Sec. 52.223 Approval status.
* * * * *
(f)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in North Coast Unified Air Quality Management
District's approved plan apply to stationary sources of greenhouse gas
(GHGs) emissions, the Administrator approves that application only to
the extent that GHGs are ``subject to regulation'', as provided in this
paragraph (b), and the Administrator takes no action on that
application to the extent that GHGs are not ``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
the EPA-approved North Coast Unified Air Quality Management District
rules at R1-1-130(s2)) and a significant net emissions increase (as
defined in the North Coast Unified Air Quality Management District
rules at R1-1-130(n1)) occur. For the pollutant GHGs, an emissions
increase shall be based on tpy CO2e, and shall be calculated
assuming the pollutant GHGs is a regulated NSR pollutant, and
``significant'' is defined as 75,000 tpy CO2e instead of
applying the value in the EPA-approved North Coast Unified Air Quality
Management District rules at R1-1-130(s2).
(g)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in Northern Sonoma County Air Pollution Control
District's approved plan apply to stationary sources of greenhouse gas
(GHGs) emissions, the Administrator approves that application only to
the extent that GHGs are ``subject to regulation'', as provided in this
paragraph (b), and the Administrator takes no action on that
application to the extent that GHGs are not ``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
[[Page 82553]]
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
the EPA-approved Northern Sonoma County Air Pollution Control District
rules at R1-1-130(s2)) and a significant net emissions increase (as
defined in the Northern Sonoma County Air Pollution Control District
rules at R1-1-130(n1)) occur. For the pollutant GHGs, an emissions
increase shall be based on tpy CO2e, and shall be calculated
assuming the pollutant GHGs is a regulated NSR pollutant, and
``significant'' is defined as 75,000 tpy CO2e instead of
applying the value in the EPA-approved Northern Sonoma County Air
Pollution Control District rules at R1-1-130(s2).
(h)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in Mendocino County Air Quality Management District's
approved plan apply to stationary sources of greenhouse gas (GHGs)
emissions, the Administrator approves that application only to the
extent that GHGs are ``subject to regulation'', as provided in this
paragraph (b), and the Administrator takes no action on that
application to the extent that GHGs are not ``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
the EPA-approved Mendocino County Air Quality Management District rules
at R1-1-130(s2)) and a significant net emissions increase (as defined
in the Mendocino County Air Quality Management District rules at R1-1-
130(m1) (1982)) occur. For the pollutant GHGs, an emissions increase
shall be based on tpy CO2e, and shall be calculated assuming
the pollutant GHGs is a regulated NSR pollutant, and ``significant'' is
defined as 75,000 tpy CO2e instead of applying the value in
the EPA-approved Mendocino County Air Quality Management District rules
at R1-1-130(s2).
Subpart G--Colorado
0
4. Section 52.323 is revised to read as follows:
Sec. 52.323 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Colorado's plan for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds that the plan satisfies
all requirements of Part D, Title 1, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) the term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) the term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
[[Page 82554]]
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
paragraphs I.A.2. through I.A.3, and I.B of Part D of Colorado's Air
Quality Commission's Regulation Number 3) and a significant net
emissions increase (as defined in paragraphs II.A.26 and II.A.42.a of
Part D of Colorado's Air Quality Commission's Regulation Number 3)
occur. For the pollutant GHGs, an emissions increase shall be based on
tpy CO2e, and shall be calculated assuming the pollutant
GHGs is a regulated NSR pollutant, and ``significant'' is defined as
75,000 tpy CO2e instead of applying the value in paragraph
II.A.42.b of Part D of Colorado's Air Quality Commission's Regulation
Number 3.
Subpart L--Georgia
0
5. Section 52.572 is revised to read as follows:
Sec. 52.572 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Georgia's plans for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
40 CFR 52.21(a)(2)(iv) (2006) and the EPA-approved Georgia
Environmental Protection Division (EPD) Rules 391-3-1-.02(7)(a)2.(I)
thru (IV) (2006)) and a significant net emissions increase (as defined
in 40 CFR 52.21(b)(3) and (b)(23)(i) (2006)) occur. 40 CFR 52.21 (2006)
is presently incorporated by reference into Georgia's approved plan at
EPA-approved Georgia EPD Rule 391-3-1-.02(7). For the pollutant GHGs,
an emissions increase shall be based on tpy CO2e, and shall
be calculated assuming the pollutant GHGs is a regulated NSR pollutant,
and ``significant'' is defined as 75,000 tpy CO2e instead of
applying the value in 40 CFR 52.21(b)(23)(ii).
Subpart P--Indiana
0
6. Section 52.773 is amended by adding paragraph (k) to read as
follows:
Sec. 52.773 Approval status.
* * * * *
(k)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (k), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (k)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (k)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (k)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the
[[Page 82555]]
procedures in [326 IAC-2-2-2(d) of Indiana's Administrative Code) and a
significant net emissions increase (as defined in 326 IAC-2-1,
paragraphs (ii) and (ww) of Indiana's Administrative Code) occur. For
the pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in paragraph 326 IAC 2-2-
1(ww)(1)(V) of Indiana's Administrative Code.
Subpart Q--Iowa
0
7. Section 52.822 is amended by adding paragraph (b) to read as
follows:
Sec. 52.822 Approval status.
* * * * *
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
40 CFR 52.21(a)(2)(iv)) and a significant net emissions increase (as
defined in 40 CFR 52.21(b)(3) and (b)(23)(i)) occur. For the pollutant
GHGs, an emissions increase shall be based on tpy CO2e, and
shall be calculated assuming the pollutant GHGs is a regulated NSR
pollutant, and ``significant'' is defined as 75,000 tpy CO2e
instead of applying the value in 40 CFR 52.21(b)(23)(ii) of this
section.
Subpart T--Louisiana
0
8. Section 52.986 is amended by adding paragraph (c) to read as
follows:
Sec. 52.986 Significant deterioration of air quality.
* * * * *
(c)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in Louisiana's approved plan apply to stationary
sources of greenhouse gas (GHGs) emissions, the Administrator approves
that application only to the extent that GHGs are ``subject to
regulation'', as provided in this paragraph (c), and the Administrator
takes no action on that application to the extent that GHGs are not
``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (c)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (c)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (c)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
the EPA-approved Louisiana Administrative Code (LAC), Title 33, Part
III, Chapter 5, Section 509, Subsection B) and a significant net
emissions increase (as defined in LAC 33:III.509.B) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in the EPA-approved
definition of ``significant'' at LAC 33:III.509.B.
Subpart U--Maine
0
9. Section 52.1022 is revised to read as follows:
Sec. 52.1022 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Maine's plan, as identified in Sec. 52.1020,
for the attainment and maintenance of the national standards under
section 110 of the Clean Air Act.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas
[[Page 82556]]
(GHGs) emissions, the Administrator approves that application only to
the extent that GHGs are ``subject to regulation'', as provided in this
paragraph (b), and the Administrator takes no action on that
application to the extent that GHGs are not ``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
06-096 1. of Chapter 100 of Maine's Bureau of Air Quality Control
regulations) and a significant net emissions increase (as defined in
06-096, paragraphs 89 and 144 A of Chapter 100 of Maine's Bureau of Air
Quality Control regulations) occur. For the pollutant GHGs, an
emissions increase shall be based on tpy CO2e, and shall be
calculated assuming the pollutant GHGs is a regulated NSR pollutant,
and ``significant'' is defined as 75,000 tpy CO2e instead of
applying the value in 06-096, paragraphs 143 and 144 D of Chapter 100
of Maine's Bureau of Air Quality Control regulations.
Subpart V--Maryland
0
10. Section 52.1073 is amended by adding paragraph (h) to read as
follows:
Sec. 52.1073 Approval status.
* * * * *
(h)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (h), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (h)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (h)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (h)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that a net significant
emissions increase (as defined in 40 CFR part 52.21(b)(3)(i) (2000) and
the EPA-approved Maryland rules at COMAR 26.11.06.14 (state effective
date 10/10/2001)). For the pollutant GHGs, a net emissions increase
shall be based on tpy CO2e, and shall be calculated assuming
the pollutant GHGs is a regulated NSR pollutant, and ``significant'' is
defined as 75,000 tpy CO2e instead of applying the value in
40 CFR 52.21(b)(23)(ii) (2000).
Subpart Z--Mississippi
0
11. Section 52.1272 is revised to read as follows:
Sec. 52.1272 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Mississippi's plan for the attainment and
maintenance of national standards under section 110 of the Clean Air
Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation,''
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of
[[Page 82557]]
this section, the pollutant GHGs shall also be subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
40 CFR 52.21(a)(2)(iv) (2007)) and a significant net emissions increase
(as defined in paragraphs 40 CFR 52.21(b)(3) and (b)(23)(i) (2007))
occur. 40 CFR 52.21 (2007) is presently incorporated by reference into
Mississippi's plan at EPA-approved Mississippi Commission on
Environmental Quality Rule APC-S-5. For the pollutant GHGs, an
emissions increase shall be based on tpy CO2e, and shall be
calculated assuming the pollutant GHGs is a regulated NSR pollutant,
and ``significant'' is defined as 75,000 tpy CO2e instead of
applying the value in 40 CFR 52.21(b)(23)(ii)(2007).
Subpart AA--Missouri
0
12. Section 52.1323 is amended by adding paragraph (n) to read as
follows:
Sec. 52.1323 Approval status.
* * * * *
(n)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation,''
as provided in this paragraph (n), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (n)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (n)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (n)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
40 CFR 52.21(a)(2)(iv)) and a significant net emissions increase (as
defined in 40 CFR 52.21(b)(3) and (b)(23)(i)) occur. For the pollutant
GHGs, an emissions increase shall be based on tpy CO2e, and
shall be calculated assuming the pollutant GHGs is a regulated NSR
pollutant, and ``significant'' is defined as 75,000 tpy CO2e
instead of applying the value in 40 CFR 52.21(b)(23)(ii).
Subpart EE--New Hampshire
0
13. Section 52.1522 is amended by adding paragraph (c) to read as
follows:
Sec. 52.1522 Approval status.
* * * * *
(c)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (c), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (c)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (c)--
(i) the term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to
[[Page 82558]]
subpart A of 40 CFR part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (c)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
40 CFR 52.21(a)(2)(iv)) and a significant net emissions increase (as
defined in paragraphs 40 CFR 52.21(b)(3) and (b)(23)(i)) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in 40 CFR
52.21(b)(23)(ii).
Subpart GG--New Mexico
0
14. Section 52.1634 is amended by adding paragraphs (d) and (e) to read
as follows:
Sec. 52.1634 Significant deterioration of air quality.
* * * * *
(d)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in New Mexico's approved plan apply to stationary
sources of greenhouse gas (GHGs) emissions, the Administrator approves
that application only to the extent that GHGs are ``subject to
regulation'', as provided in this paragraph (b), and the Administrator
takes no action on that application to the extent that GHGs are not
``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) the term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
the EPA-approved New Mexico Environment Department (NMED) rules at New
Mexico Administrative Code (NMAC) 20.2.74.200, Subsection D) and a
significant net emissions increase (as defined in the EPA-approved NMED
rules at NMAC 20.2.74.7, paragraphs (AK), (AV), and (AW)) occur. For
the pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in the EPA-approved NMED
rules at Table 2 of NMAC 20.2.74.502.
(e)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in Bernallilo County/City of Albuquerque's approved
plan apply to stationary sources of greenhouse gas (GHGs) emissions,
the Administrator approves that application only to the extent that
GHGs are ``subject to regulation'', as provided in this paragraph (b),
and the Administrator takes no action on that application to the extent
that GHGs are not ``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
the EPA-approved Bernallilo County/City of Albuquerque rules at NMAC
20.11.61.11, Subsection D) and a significant net emissions increase (as
defined in the EPA-approved Bernanillo County/City of Albuquerque rules
at NMAC 20.11.61.7, paragraphs (OO), (YY), and (ZZ)) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in the EPA-approved
Bernallilo County/City of Albuquerque rules at Table 2 of NMAC
20.11.61.27.
Subpart II--North Carolina
0
15. Section 52.1772 is amended by adding paragraph (c) to read as
follows:
Sec. 52.1772 Approval status.
* * * * *
(c)(1) Insofar as the Prevention of Significant Deterioration (PSD)
[[Page 82559]]
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (c), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (c)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (c)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (c)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that a significant net
emissions increase (as defined in paragraphs 40 CFR 51.166(b)(3) (1996)
and 40 CFR 51.166(b)(23)(i) (1996)) occurs. 40 CFR 51.166 (1996) is
presently incorporated by reference into North Carolina's plan at EPA-
approved North Carolina Rule 15A NCAC 02D-.544. For the pollutant GHGs,
an emissions increase shall be based on tpy CO2e, and shall
be calculated assuming the pollutant GHGs is a regulated NSR pollutant,
and ``significant'' is defined as 75,000 tpy CO2e instead of
applying the value in 40 CFR 51.166(b)(23)(ii) (1996).
Subpart KK--Ohio
0
16. Section 52.1873 is revised to read as follows:
Sec. 52.1873 Approval status.
(a) With the exceptions set forth in this subpart the Administrator
approves Ohio's plan for the attainment and maintenance of the National
Ambient Air Quality Standards under section 110 of the Clean Air Act.
Furthermore, the Administrator finds the plan satisfies all the
requirements of Part D, Title 1 of the Clean Air Act as amended in
1977, except as noted below. In addition, continued satisfaction of the
requirements of Part D for the ozone portion of the SIP depends on the
adoption and submittal of RACT requirements by January 1, 1981 for the
sources covered by CTGs between January 1978 and January 1979 and
adoption and submittal by each subsequent January of additional RACT
requirements for sources covered by CTGs issued by the previous
January.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) the term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
3745-31-01(III)(4) of Ohio's Administrative Code) and a significant net
emissions increase (as defined in paragraphs 3745-31-01, paragraphs
(SSS) and (LLLLL)(1) of Ohio's Administrative Code) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in paragraph 3745-31-
01(LLLLL)(2) of Ohio's Administrative Code.
Subpart LL--Oklahoma
0
17. Section 52.1929 is amended by adding paragraph (c) to read as
follows:
Sec. 52.1929 Significant deterioration of air quality.
* * * * *
(c)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in Oklahoma's approved plan apply to stationary
sources of greenhouse gas (GHGs) emissions, the Administrator approves
that application only to the extent that GHGs are ``subject to
regulation'', as provided in this paragraph (b), and the
[[Page 82560]]
Administrator takes no action on that application to the extent that
GHGs are not ``subject to regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) the term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using EPA-approved
procedures in Oklahoma Air Pollution Control Regulation 1.4.4(b)) and a
significant net emissions increase (as defined in the EPA-approved
Oklahoma Air Pollution Control Regulation 1.4.4(b)(3) and (22),
definitions for ``net emissions increase'' and ``significant) occur.
For the pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in 1.4.4(b)(22) of the
EPA-approved definition for ``significant'' of Oklahoma's Air Pollution
Control Regulations.
Subpart OO--Rhode Island
0
18. Section 52.2072 is revised to read as follows:
Sec. 52.2072 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Rhode Island's plan, as identified in Sec.
52.2070 of this subpart, for the attainment and maintenance of the
national standards under section 110 of the Clean Air Act. Furthermore,
the Administrator finds the plan satisfies all requirements of Part D,
Title I, of the Clean Air Act, as amended in 1977, except as noted
below. In addition, continued satisfaction of the requirements of Part
D for the ozone portion of the SIP depends on the adoption and
submittal of RACT requirements by January 1, 1981 for the sources
covered by CTGs issued between January 1978 and January 1979 and
adoption and submittal by each subsequent January as additional RACT
requirements for sources covered by CTGs issued by the previous
January.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) the term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
9.1.1 of Rhode Island's Air Pollution Control Regulation No. 9) and a
significant net emissions increase (as defined in 9.1.24 and 9.1.34 of
Rhode Island's Air Pollution Control Regulation No. 9) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value for ``any other
pollutant'' in 9.1.34 of Rhode Island's Air Pollution Control
Regulation No. 9.
Subpart PP--South Carolina
0
19. Section 52.2122 is amended by adding paragraph (c) to read as
follows:
Sec. 52.2122 Approval status.
* * * * *
(c)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (c), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
[[Page 82561]]
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (c)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (c)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (c)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
South Carolina Air Pollution Control Regulations and Standards (South
Carolina Regulations) 61-62.5, Standard No. 7, paragraph (a)(2)(iv))
and a significant net emissions increase (as defined in South Carolina
Air Pollution Control Regulations and Standards (South Carolina
Regulations) 61-62.5, Standard No. 7, paragraphs (b)(34) and
(b)(49)(i)) occur. For the pollutant GHGs, an emissions increase shall
be based on tpy CO2e, and shall be calculated assuming the
pollutant GHGs is a regulated NSR pollutant, and ``significant'' is
defined as 75,000 tpy CO2e instead of applying the value in
South Carolina Air Pollution Control Regulations and Standards (South
Carolina Regulations) 61-62.5, Standard No. 7, paragraph (b)(49)(ii).
Subpart QQ--South Dakota
0
20. Section 52.2172 is revised to read as follows:
Sec. 52.2172 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves South Dakota's plan as meeting the requirements
of section 110 of the Clean Air Act, as amended in 1977. Furthermore,
the Administrator finds that the plan satisfies all requirements of
Part D of the Clean Air Act, as amended in 1977.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
40 CFR 52.21(a)(2)(iv)) and a significant net emissions increase (as
defined in paragraphs 40 CFR 52.21(b)(3) and (b)(23)(i)) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in 40 CFR
52.21(b)(23)(ii).
Subpart RR--Tennessee
0
21. Section 52.2222 is amended by adding paragraph (d) to read as
follows:
Sec. 52.2222 Approval status.
* * * * *
(d)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (d), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (d)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
[[Page 82562]]
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (d)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (d)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
Tennessee Air Pollution Control Regulation 1200-03-09-.01(4)(c)(4) and
a significant net emissions increase (as defined in Tennessee Air
Pollution Control Regulation 1200-03-09-.01, paragraphs (4)(b)(4) and
(4)(b)(24)(i)) occur. For the pollutant GHGs, an emissions increase
shall be based on tpy CO2e, and shall be calculated assuming
the pollutant GHGs is a regulated NSR pollutant, and ``significant'' is
defined as 75,000 tpy CO2e instead of applying the value in
Tennessee Air Pollution Control Regulation 1200-03-09-.01, paragraph
(4)(b)(24)(ii).
Subpart TT--Utah
0
22. Section 52.2323 is revised to read as follows:
Sec. 52.2323 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Utah's plan as meeting the requirements of
section 110 of the Clean Air Act as amended in 1977. Furthermore, the
Administrator finds that the plan satisfies all requirements of Part D,
Title 1, of the Clean Air Act as amended in 1977, except as noted
below.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) the term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
40 CFR 52.21(a)(2)(iv)) and a significant net emissions increase (as
defined in paragraphs 40 CFR 52.21(b)(3) and (b)(23)(i)) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in 40 CFR
52.21(b)(23)(ii).
Subpart UU--Vermont
0
23. Section 52.2372 is revised to read as follows:
Sec. 52.2372 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Vermont's plan as identified in Sec. 52.2370
for the attainment and maintenance of the national standards under
section 110 of the Clean Air Act. Furthermore, the Administrator finds
the plans satisfy all requirements of Part D, Title I, of the Clean Air
Act, as amended in 1977, except as noted below. In addition, continued
satisfaction of the requirements of Part D for the ozone portion of the
SIP depends on the adoption and submittal of RACT requirements by July
1, 1980 for the sources covered by CTGs issued between January, 1978
and January, 1979 and adoption and submittal by each subsequent January
of additional RACT requirements for sources covered by CTGs issued by
the previous January.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
[[Page 82563]]
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
the definitions for ``actual emissions'' and ``allowable emissions''
under section 5-101 of Chapter 5, subchapter I of Vermont's Air
Pollution Control Environmental Protection regulations) and a
significant net emissions increase (as defined in the definitions for
``significant'' under section 5-101 of Chapter 5, subchapter I of
Vermont's Air Pollution Control Environmental Protection regulations)
occur. For the pollutant GHGs, an emissions increase shall be based on
tpy CO2e, and shall be calculated assuming the pollutant
GHGs is a regulated NSR pollutant, and ``significant'' is defined as
75,000 tpy CO2e instead of applying the value in the
definition of ``major modification'' under section 5-101 of Chapter 5,
subchapter I of Vermont's Air Pollution Control Environmental
Protection regulations.
Subpart VV--Virginia
0
24. Section 52.2423 is amended by adding paragraph (t) to read as
follows:
Sec. 52.2423 Approval status.
* * * * *
(t)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (t), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (t)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (t)--
(i) the term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (t)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in 9
VAC 5-80-1605 G of the Commonwealth of Virginia's Administrative Code)
and a significant net emissions increase (as defined in the definitions
for ``net emissions increase,'' ``significant'' subparagraph a., and
``significant emissions increase'' under 9 VAC 5-80-1605 C of the
Commonwealth of Virginia's Administrative Code) occur. For the
pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value specified in the
definition for ``significant'' subparagraph b. under 9 VAC 5-80-1605 C
of the Commonwealth of Virginia's Administrative Code.
Subpart YY--Wisconsin
0
25. Section 52.2572 is revised to read as follows:
Sec. 52.2572 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Wisconsin's plans for the attainment and
maintenance of the National Ambient Air Quality Standards under section
110 of the Clean Air Act. Furthermore, the Administrator finds the
plans satisfy all requirements of Part D, Title I, of the Clean Air Act
as amended in 1977, except as noted below. In addition, continued
satisfaction of the requirements of Part D for the Ozone portion of the
State Implementation Plan depends on the adoption and submittal of RACT
requirements on:
(1) Group III Control Techniques Guideline sources within 1 year
after January 1st following the issuance of each Group III control
technique guideline; and
(2) Major (actual emissions equal or greater than 100 tons VOC per
year) non-control technique guideline sources in accordance with the
State's schedule contained in the 1982 Ozone SIP revision for
Southeastern Wisconsin.
(b)(1) Insofar as the Prevention of Significant Deterioration (PSD)
provisions found in this subpart apply to stationary sources of
greenhouse gas (GHGs) emissions, the Administrator approves that
application only to the extent that GHGs are ``subject to regulation'',
as provided in this paragraph (b), and the Administrator takes no
action on that application to the extent that GHGs are not ``subject to
regulation.''
(2) Beginning January 2, 2011, the pollutant GHGs is subject to
regulation if:
(i) The stationary source is a new major stationary source for a
regulated NSR pollutant that is not GHGs, and also will emit or will
have the potential to emit 75,000 tpy CO2e or more; or
(ii) The stationary source is an existing major stationary source
for a
[[Page 82564]]
regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more; and,
(3) Beginning July 1, 2011, in addition to the provisions in
paragraph (b)(2) of this section, the pollutant GHGs shall also be
subject to regulation:
(i) At a new stationary source that will emit or have the potential
to emit 100,000 tpy CO2e; or
(ii) At an existing stationary source that emits or has the
potential to emit 100,000 tpy CO2e, when such stationary
source undertakes a physical change or change in the method of
operation that will result in an emissions increase of 75,000 tpy
CO2e or more.
(4) For purposes of this paragraph (b)--
(i) The term greenhouse gas shall mean the air pollutant defined in
40 CFR 86.1818-12(a) as the aggregate group of six greenhouse gases:
Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride.
(ii) The term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
(A) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of 40 CFR
part 98--Global Warming Potentials.
(B) Sum the resultant value from paragraph (b)(4)(ii)(A) of this
section for each gas to compute a tpy CO2e.
(iii) The term emissions increase shall mean that both a
significant emissions increase (as calculated using the procedures in
NR 405.025 of Wisconsin's Administrative Code) and a significant net
emissions increase (as defined in NR 405.02, paragraphs (24), (27)(a),
and (27m) of Wisconsin's Administrative Code) occur. For the pollutant
GHGs, an emissions increase shall be based on tpy CO2e, and
shall be calculated assuming the pollutant GHGs is a regulated NSR
pollutant, and ``significant'' is defined as 75,000 tpy CO2e
instead of applying the value in NR 405.02(27)(c) of Wisconsin's
Administrative Code.
[FR Doc. 2010-32766 Filed 12-29-10; 8:45 am]
BILLING CODE 6560-50-P