[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82246-82254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32784]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2010-0107; FRL-9245-3]
RIN 2060-AQ45
Action To Ensure Authority To Issue Permits Under the Prevention
of Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is establishing a federal implementation plan (FIP) to
apply in each of seven states that have not submitted by their
established deadline a corrective state implementation plan (SIP)
revision to apply their Clean Air Act (CAA or Act) Prevention of
Significant Deterioration (PSD) program to sources of greenhouse gases
(GHGs). This action will ensure that a permitting authority--EPA--is
available in these states as of January 2, 2011, when PSD becomes
applicable to GHG-emitting sources, to issue preconstruction PSD
permits and thereby facilitate construction or expansion. The seven
states are: Arizona: Both Pinal County and Rest of State (excluding
Maricopa County, Pima County, and Indian Country), Arkansas, Florida,
Idaho, Kansas, Oregon, and Wyoming. This action is related to EPA's
recently promulgated final rule, published on December 13, 2010, which
we call the GHG PSD SIP call, and in which EPA made a finding of
substantial inadequacy and issued a SIP call for these seven states and
several others on grounds that their SIPs do not apply the PSD program
to GHG-emitting sources.
DATES: This action is effective on December 30, 2010.
ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2010-0107. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the
U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Cheryl Vetter, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-4391; fax number: (919) 541-5509; e-mail
address: [email protected].
For information related to a specific state, local, or tribal
permitting authority, please contact the appropriate EPA regional
office:
------------------------------------------------------------------------
Contact for regional
office (person,
EPA regional office mailing address, Permitting authority
telephone number)
------------------------------------------------------------------------
I........................... Dave Conroy, Chief, Connecticut,
Air Programs Massachusetts,
Branch, EPA Region Maine, New
1, 5 Post Office Hampshire, Rhode
Square, Suite 100, Island, and Vermont
Boston, MA 02109-
3912, (617) 918-
1661.
II.......................... Raymond Werner, New Jersey, New
Chief, Air Programs York, Puerto Rico,
Branch, EPA Region and Virgin Islands.
2, 290 Broadway,
25th Floor, New
York, NY 10007-
1866, (212) 637-
3706.
III......................... Kathleen Cox, Chief, District of
Permits and Columbia, Delaware,
Technical Maryland,
Assessment Branch, Pennsylvania,
EPA Region 3, 1650 Virginia, and West
Arch Street, Virginia.
Philadelphia, PA
19103-2029, (215)
814-2173.
IV.......................... Lynorae Benjamin, Alabama, Florida,
Chief, Regulatory Georgia, Kentucky,
Development Mississippi, North
Section, Air, Carolina, South
Pesticides and Carolina, and
Toxics Management Tennessee.
Division, EPA
Region 4, Atlanta
Federal Center, 61
Forsyth Street, SW,
Atlanta, GA 30303-
3104, (404) 562-
9033.
V........................... J. Elmer Bortzer, Illinois, Indiana,
Chief, Air Programs Michigan,
Branch (AR-18J), Minnesota, Ohio,
EPA Region 5, 77 and Wisconsin.
West Jackson
Boulevard, Chicago,
IL 60604-3507,
(312) 886-1430.
VI.......................... Jeff Robinson, Arkansas, Louisiana,
Chief, Air Permits New Mexico,
Section, EPA Region Oklahoma, and
6, Fountain Place Texas.
12th Floor, Suite
1200, 1445 Ross
Avenue, Dallas, TX
75202-2733, (214)
665-6435.
VII......................... Mark Smith, Chief, Iowa, Kansas,
Air Permitting and Missouri, and
Compliance Branch, Nebraska.
EPA Region 7, 901
North 5th Street,
Kansas City, KS
66101, (913) 551-
7876.
VIII........................ Carl Daly, Unit Colorado, Montana,
Leader, Air North Dakota, South
Permitting, Dakota, Utah, and
Monitoring & Wyoming.
Modeling Unit, EPA
Region 8, 1595
Wynkoop Street,
Denver, CO 80202-
1129, (303) 312-
6416.
IX.......................... Gerardo Rios, Chief, Arizona, California,
Permits Office, EPA Hawaii and the
Region 9, 75 Pacific Islands,
Hawthorne Street, Indian Country
San Francisco, CA within Region 9 and
94105, (415) 972- Navajo Nation, and
3974. Nevada.
X........................... Nancy Helm, Manager, Alaska, Idaho,
Federal and Oregon, and
Delegated Air Washington.
Programs Unit, EPA
Region 10, 1200
Sixth Avenue, Suite
900, Seattle, WA
98101, (206) 553-
6908.
------------------------------------------------------------------------
[[Page 82247]]
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities affected by this rule include the seven state and local
permitting authorities \1\ identified by EPA to have not submitted by
their deadline a SIP revision that would apply PSD requirements to GHG-
emitting sources. In the GHG PSD SIP call,\2\ EPA determined that these
seven states have SIPs that are substantially inadequate to achieve CAA
requirements because their PSD programs do not apply to GHG-emitting
sources, and EPA established that deadline.
---------------------------------------------------------------------------
\1\ For convenience, we refer to ``states'' in this rulemaking
to collectively mean states and local permitting authorities.
\2\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Final rule, 75 FR 77698 (December 13, 2010).
---------------------------------------------------------------------------
Entities potentially affected by this rule also include sources in
all industry groups, which have a direct obligation under the CAA to
obtain a PSD permit for GHGs for projects that meet the applicability
thresholds set forth in the Tailoring Rule.\3\ This independent
obligation on sources is specific to PSD and derives from CAA section
165(a). Any source that is subject to a state PSD air permitting
regulation not structured to apply to GHG-emitting sources will rely on
this rule to obtain a permit that contains emission limitations that
conform to requirements under CAA section 165(a). The majority of
entities potentially affected by this action are expected to be in the
following groups:
---------------------------------------------------------------------------
\3\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3,
2010).
------------------------------------------------------------------------
Industry group NAICS \a\
------------------------------------------------------------------------
Utilities (electric, natural gas, other 2211, 2212, 2213.
systems).
Manufacturing (food, beverages, 311, 312, 313, 314, 315, 316.
tobacco, textiles, leather).
Wood product, paper manufacturing...... 321, 322.
Petroleum and coal products 32411, 32412, 32419.
manufacturing.
Chemical manufacturing................. 3251, 3252, 3253, 3254, 3255,
3256, 3259.
Rubber product manufacturing........... 3261, 3262.
Miscellaneous chemical products........ 32552, 32592, 32591, 325182,
32551.
Nonmetallic mineral product 3271, 3272, 3273, 3274, 3279.
manufacturing.
Primary and fabricated metal 3311, 3312, 3313, 3314, 3315,
manufacturing. 3321, 3322, 3323, 3324, 3325,
3326, 3327, 3328, 3329.
Machinery manufacturing................ 3331, 3332, 3333, 3334, 3335,
3336, 3339.
Computer and electronic products 3341, 3342, 3343, 3344, 3345,
manufacturing. 4446.
Electrical equipment, appliance, and 3351, 3352, 3353, 3359.
component manufacturing.
Transportation equipment manufacturing. 3361, 3362, 3363, 3364, 3365,
3366, 3366, 3369.
Furniture and related product 3371, 3372, 3379.
manufacturing.
Miscellaneous manufacturing............ 3391, 3399.
Waste management and remediation....... 5622, 5629.
Hospitals/nursing and residential care 6221, 6231, 6232, 6233, 6239.
facilities.
Personal and laundry services.......... 8122, 8123.
Residential/private households......... 8141.
Non-residential (commercial)........... Not available. Codes only exist
for private households,
construction and leasing/sales
industries.
------------------------------------------------------------------------
\a\ North American Industry Classification System.
B. How is the preamble organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. How is the preamble organized?
II. Overview of Rulemaking
III. Final Action and Response to Comments
A. Authority To Promulgate a FIP
B. Timing of GHG PSD FIP
C. Substance of GHG PSD FIP
D. Period for GHG PSD FIP To Remain in Place
E. Primacy of SIP Process
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045--Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
L. Congressional Review Act
V. Judicial Review
VI. Statutory Authority
II. Overview of Rulemaking
In this rulemaking, EPA is establishing a FIP, which we call the
GHG PSD FIP, or simply, the FIP, to apply in each of seven states that
have not submitted by December 22, 2010, a corrective SIP revision to
apply their CAA PSD program to sources of GHGs. This is the deadline
EPA established after the affected states indicated that they would not
object to it, to ensure that a permitting authority would be in place
as of January 2, 2011 to facilitate issuance of PSD permits for
construction and modification of sources.
This preamble should be read in conjunction with the preamble for
the proposed rulemaking for this action, which we call the GHG PSD FIP
proposal or the FIP proposal; \4\ and the SIP call rulemaking that is
associated with this rulemaking, including (i) the proposed SIP call
rulemaking, which we call the GHG PSD SIP call proposal or the SIP call
proposal, and which accompanied the FIP proposal,\5\ and (ii) the final
SIP call rulemaking, which we call the GHG PSD SIP call or the SIP
call. Background information for this
[[Page 82248]]
rulemaking is found in those rulemakings and in the rulemakings
referenced therein and will not be reiterated here.
---------------------------------------------------------------------------
\4\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan--Proposed
rule, 75 FR 53883 (September 2, 2010).
\5\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Proposed rule, 75 FR 53892 (September 2, 2010).
---------------------------------------------------------------------------
By notices dated September 2, 2010, EPA published as companion
actions the SIP call proposal and the FIP proposal. In the SIP call
proposal, EPA proposed to find that 13 states with EPA-approved SIP PSD
programs are substantially inadequate to meet CAA requirements because
they do not appear to apply PSD requirements to GHG-emitting sources.
For each of these states, EPA proposed to require the state (through a
SIP call) to revise its SIP as necessary to correct such inadequacies.
In the FIP proposal, EPA proposed a FIP to apply in any state that is
unable to submit, by its deadline, a corrective SIP revision to apply
the PSD program to sources of GHGs. The FIP would provide authority to
EPA to issue PSD permits for construction or modification of
appropriate GHG sources in the state.
On December 1, 2010, EPA promulgated the GHG PSD SIP call, and EPA
published it by notice dated December 13, 2010.\6\ In the SIP call, EPA
finalized its finding that the SIPs of 13 states (comprising 15 state
and local programs) are substantially inadequate to meet CAA
requirements because they do not apply PSD requirements to GHG-emitting
sources. In addition, EPA finalized a SIP call for each of these
states, which required the state to revise its SIP as necessary to
correct such inadequacies. Further, EPA established a deadline for each
state to submit its corrective SIP revision. These deadlines, which
differed among the states, ranged from December 22, 2010, to December
1, 2011.
---------------------------------------------------------------------------
\6\ Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Final Rule, 75 FR 77698 (December 13, 2010).
---------------------------------------------------------------------------
Seven states received a SIP submittal deadline of December 22,
2010, based on information received from each state during the public
comment period that they would not object to this deadline. These seven
states are: (1) Arizona: Both Pinal County and Rest of State (excluding
Maricopa County, Pima County, and Indian Country); \7\ (2) Arkansas;
(3) Florida; (4) Idaho; (5) Kansas; (6) Oregon; and (7) Wyoming.
---------------------------------------------------------------------------
\7\ EPA issued to Arizona a separate finding of substantial
inadequacy, SIP call, and deadline for SIP submittal for each of
Pinal County and for the rest of the state (excluding Maricopa
County, Pima County, and Indian Country).
---------------------------------------------------------------------------
On December 23, 2010, EPA issued a finding under CAA section
110(c)(1)(A) that each of the seven states ``failed to make [the]
required submission'' of the corrective SIP call-mandated SIP revision
by its December 22, 2010 deadline. EPA notified each state of the
finding by letter. Those letters are located in the docket for this
rulemaking.
III. Final Action and Response to Comments
A. Authority To Promulgate a FIP
In this rulemaking, EPA is finalizing the GHG PSD FIP as proposed
for each of the seven states: (1) Arizona: Both Pinal County and Rest
of State (excluding Maricopa County Pima County, and Indian Country);
\8\ (2) Arkansas; (3) Florida; (4) Idaho; (5) Kansas; (6) Oregon; and
(7) Wyoming.
---------------------------------------------------------------------------
\8\ In this rulemaking, EPA is finalizing for Arizona a separate
GHG PSD FIP for each of Pinal County and for the rest of the state
(excluding Maricopa County, Pima County, and Indian Country).
---------------------------------------------------------------------------
The CAA authority for EPA to promulgate a FIP is found in CAA
section 110(c)(1), which provides--
The Administrator shall promulgate a Federal implementation plan
at any time within 2 years after the Administrator--(A) finds that a
State has failed to make a required submission * * * unless the
State corrects the deficiency, and [EPA] approves the plan or plan
revision, before the Administrator promulgates such [FIP].
As noted earlier in this preamble, on December 23, 2010, EPA issued
a finding that each of the seven states affected by this rule ``failed
to make [the] required submission'' of the corrective SIP call-mandated
SIP revision by its December 22, 2010 deadline. Accordingly, under CAA
section 110(c)(1), EPA is required to promulgate a FIP for each of the
states.
It should be noted that EPA specifically proposed the FIP for six
of the seven states affected by this rulemaking, all except for
Wyoming. EPA did not include Wyoming among the states for which EPA
specifically proposed the SIP call, and, as a result, did not include
Wyoming among the states for which EPA specifically proposed the FIP.
However, in the proposed SIP call, EPA stated that it was soliciting
comment on all the other states, and, if EPA received information
indicating that another state should receive the SIP call, then EPA
would, without a supplemental or further proposal, issue a final SIP
call for that other state.\9\ Similarly, EPA stated in the FIP proposal
that if EPA issued a SIP call for that other state, and the other state
did not submit a corrective SIP revision by its deadline, then, EPA
would finalize the FIP for that other state, too.\10\
---------------------------------------------------------------------------
\9\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Proposed rule, 75 FR 53,895-6 (September 2, 2010).
\10\ Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan--Proposed
rule, 75 FR 53,886 (September 2, 2010).
---------------------------------------------------------------------------
We reiterate that each of the seven states affected by this
rulemaking specifically indicated to EPA that it preferred that EPA
promulgate a FIP to take effect by January 2, 2011--when sources in the
state become subject to PSD--rather than EPA not promulgate a FIP until
a later time. This is because each state sought to assure that, as of
January 2, 2011, a permitting authority for GHG-emitting sources would
be in place in the state. These states made this choice by indicating
that they did not object to EPA establishing a SIP submittal date of
December 22, 2010, when EPA made clear in the proposed SIP call and FIP
that if the state did not submit the required SIP revision by that
date, then EPA would promulgate the FIP the next day. 75 FR at 53904/2
(proposed SIP call); id. at 53889/2 (proposed FIP). For the most part,
the remaining states that were subject to the SIP call indicated a
later SIP submittal date, but they believe that although this will mean
a short delay in the availability of a permitting authority for GHG-
emitting sources in their state, that delay will not adversely affect
their sources. EPA regional and headquarters officials conferred
extensively with state officials concerning the states' progress and
plans and with the National Association of Clean Air Agencies.\11\
---------------------------------------------------------------------------
\11\ Declaration of Gina McCarthy, ]]4-5, pp. 3-4, ``EPA's
Response To Motions To Stay,'' Coalition for Responsible Regulation
v. EPA, No. 09-1322 (and consolidated cases) (McCarthy Declaration).
---------------------------------------------------------------------------
In this rulemaking, EPA is not taking final action to promulgate a
FIP for any of the other states which EPA included in the FIP proposal.
This is because for each of the other states, either EPA did not
finalize the SIP call or EPA did finalize the SIP call but established
a SIP submittal deadline that has not yet arrived. As a result, EPA has
not issued a finding of failure to submit the required SIP revision for
any of these other states. It continues to be EPA's intent that if any
of these other states does not submit the required SIP revision by its
deadline, then EPA will immediately issue a finding of failure to
submit a required SIP submission and immediately promulgate a GHG PSD
FIP for that state.
In comments received, some commenters stated, ``Remarkably, EPA
states that it will also directly promulgate a SIP call and FIP for any
[[Page 82249]]
states it has inadvertently omitted from its notice of proposed
rulemaking.'' Although the commenters do not elaborate upon this
statement, they seem to imply that it would be improper for EPA to
finalize a FIP for such states because we did not provide adequate
notice and opportunity for comment.
The only state for which this comment may be relevant is Wyoming,
as noted earlier in this preamble. We disagree with the commenters. In
the proposal, we listed the states with approved SIP PSD programs for
which we were not proposing a finding of substantial inadequacy and a
SIP call, and so were not proposing a FIP. But we went on to
specifically solicit comment on whether each of those states merited a
finding, SIP call,\12\ and, ultimately, a FIP; and we included
citations to the relevant SIP provisions.\13\ Moreover, we generally
described the circumstances under which those states may merit a FIP.
As a result, commenters had adequate notice that EPA could ultimately
finalize a FIP for those states if and when they missed their SIP
submittal deadlines, and they had full opportunity to comment if they
had relevant views or information. This was discussed in greater detail
in the SIP call rulemaking 75 FR at 77715/6.
---------------------------------------------------------------------------
\12\ During the comment period, Wyoming did send information
indicating that, in Wyoming's view, Wyoming did not have legal
authority to apply PSD to GHG-emitting sources and therefore Wyoming
should be included in the SIP call. A Wyoming environmental group
provided comments during the comment period saying that it believed
Wyoming did have legal authority to apply PSD to GHG-emitting
sources. Accordingly, it is clear that the solicitation of comment
was sufficient notice to the public. More detailed information
regarding Wyoming and other states covered in this rulemaking may be
found in the ``Supplemental Information Document for Final Action to
Ensure Authority to Issue Permits under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Substantial Inadequacy and SIP Call,'' located
in the docket for this rulemaking.
\13\ Thus, commenters are incorrect in characterizing EPA as
having ``inadvertently omitted [Wyoming] from its notice of proposed
rulemaking.''
---------------------------------------------------------------------------
B. Timing of GHG PSD FIP
In the GHG PSD FIP proposal, we stated:
If any of the states for which we issue the SIP Call does not
meet its SIP submittal deadline, we will immediately issue a finding
of failure to submit a required SIP submission, under CAA section
110(c)(1)(A), and immediately thereafter promulgate a FIP for the
state. This timing for FIP promulgation is authorized under CAA
section 110(c)(1), which authorizes us to promulgate a FIP ``at any
time within 2 years after'' finding a failure to submit a required
SIP submission. We intend to take these actions immediately in order
to minimize any period of time during which larger-emitting sources
may be under an obligation to obtain PSD permits for their GHGs when
they construct or modify, but no permitting authority is authorized
to issue those permits.
75 FR at 53,889/2.
In this final rulemaking, we are proceeding in the same manner that
we proposed, and for the same reasons. That is, we are exercising our
discretion to promulgate the FIP for each of the seven affected states
``immediately in order to minimize any period of time during which
larger-emitting sources may be under an obligation to obtain PSD
permits for their GHGs when they construct or modify, but no permitting
authority is authorized to issue those permits.'' 75 FR at 53889/2. We
believe that acting immediately is in the best interests of the states
and the regulated community.
EPA received comments that the process EPA has employed in this
action, which was to propose the FIP as a companion rule to the
proposed SIP call, and then to finalize the FIP immediately after
making a finding that a state has not submitted the required SIP
revision by its deadline, ``is not how CAA section 110 works or how
Congress intended it to work.'' The commenter added that--
[O]nly after a state has * * * failed to [submit a SIP revision]
after an applicable period as specified in the CAA or EPA
regulations * * * and after EPA has made a determination that the
SIP revision is deficient in one or more respects, may the Agency
step in to propose a FIP rule. And only after taking that step could
EPA then proceed * * * [to take final action on the FIP.]
Notwithstanding EPA's strained and out-of-context emphasis on the
isolated sentence fragment, ``at any time within,'' the very fact
that the CAA affords EPA up to two full years in which to complete
the cooperative task of considering whether a FIP is needed and how
such a plan should be fashioned, and the corollary fact that the Act
does not mandate any federal takeover in less than two years,
militate against EPA's approach here to FIP rulemaking. In
particular, those facts undermine EPA's assumption that it need not
take the time to develop a proposed plan specifically directed at
remedying identified deficiencies in a given state submission, and
to give states and the regulated community a meaningful opportunity
to comment on a proposed FIP that has been specifically developed to
address the individual needs and circumstances of such a state.
(Emphasis in original.)
EPA disagrees with these comments. As we stated in the proposed
rule, CAA section 110(c)(1)(A) authorizes EPA to promulgate a FIP ``at
any time within 2 years after'' finding a failure to submit a required
SIP revision. We are promulgating the FIP immediately because we wish
to minimize any disruption in permitting for the larger GHG-emitting
sources and we are doing so after consultation with the affected
states. The seven states that are the subject of this rulemaking told
EPA that they would not object to the promulgation of a FIP at the
earliest possible deadline, or December 22, 2010, because that would
ensure a permitting authority would be in place as of January 2, 2011.
Without the FIP, these states would be without an approved program to
issue PSD permits for GHG-emitting sources until the states submit, and
EPA approves, a SIP revision. The FIP provides sources in these states
an immediate mechanism to obtain required permits for construction and
modification until the revised SIPs are approved.
As for commenters' analysis of CAA section 110(c), that provision,
by its terms, imposes no constraints on when EPA may propose a FIP.
This stands in contrast to other CAA provisions that do impose
requirements for the timing of proposals. See CAA sections
109(a)(1)(A), 111(b)(1)(B). In light of the lack of constraints in CAA
section 110(c), EPA was free to propose the FIP at the same time that
EPA proposed the SIP call. We do not agree that the overall construct
of CAA section 110 imposes the implicit constraints that the commenter
identifies.
Instead, what is important is that for each of the 13 states for
which EPA specifically proposed the FIP, which were the same as the
ones for which EPA proposed the SIP call, the public had adequate
notice of the circumstances under which EPA proposed that the state
would become subject to the FIP. Those circumstances were that if EPA
finalized the SIP call, as proposed, for the state, and if the state
did not submit a SIP revision applying its PSD program to GHG-emitting
sources by the deadline, EPA would establish a FIP for that state. In
fact, EPA did finalize the SIP call for all but one of those 13 states
and is now finalizing the FIP for six of them. Further, EPA received
comments on the proposed FIP from several states and/or industries
located in states for which EPA proposed the FIP, which indicates that
the FIP proposal provided adequate notice. See, e.g., comments
identified in the rulemaking docket as document numbers 0084.1 (Texas),
0055.1 (Arkansas), 0066.1 (Texas Industry Project), and 0109.1
(National Mining Association).
Although for Wyoming EPA did not specifically propose the SIP call
or FIP, the public had the same opportunity to
[[Page 82250]]
comment on the prospect of a FIP for Wyoming as the public did for the
states for which EPA did specifically propose the FIP. This is because
EPA solicited comment on whether to issue a SIP call for Wyoming (along
with other states with approved PSD programs); made clear that if EPA
received certain information, EPA would finalize the SIP call for
Wyoming; and, further, made clear that if EPA issued a SIP call for
Wyoming and Wyoming did not submit the required SIP by Wyoming's
deadline, then EPA would finalize the FIP. In fact, Wyoming commented
on the FIP. See comment identified in the rulemaking docket as document
number 0079.1.
Moreover, EPA was clear that for each state subject to the SIP call
that did not submit the required SIP revision by its SIP submittal
deadline, EPA would immediately make a finding of failure to submit and
immediately promulgate a FIP. EPA explained that this approach was
needed to assure the availability of a permitting authority for sources
in the state.
Finally, each of the states and the public in general had adequate
notice of the terms of the FIP as it would apply in any state.
Specifically, EPA indicated that the FIP would apply PSD to GHG-
emitting sources at the Tailoring Rule thresholds.
Therefore, the FIP proposal was clear as to the circumstances under
which EPA proposed to promulgate a FIP, the timing for the FIP, and the
terms of the FIP. Moreover, each of those three things applied to each
state that would become subject to the SIP call. Accordingly, the FIP
proposal did, in fact, ``give states and the regulated community a
meaningful opportunity to comment on a proposed FIP that has been
specifically developed to address the individual needs and
circumstances of such a state,'' as the commenter argues the FIP
proposal needed to do.
Several commenters raised an additional objection, which was that
in their view, EPA failed to comply with the requirements of CAA
section 307(d)(3) that (i) the proposed FIP include a summary of ``the
factual data on which the proposed rule is based'' and ``the major
legal interpretations and policy considerations underlying the proposed
rule''; and (ii) ``[a]ll data, information, and documents * * * on
which the proposed rule relies shall be included in the docket on the
date of publication of the proposed rule.'' (Emphasis added by one of
these commenters.) One of these commenters explained that (a) in the
SIP call proposal, EPA had made a detailed request that states provide
information as to whether their state law authorized the application of
PSD to GHG-emitting sources; (b) this detailed request demonstrated
that the proposal did not establish the legal basis for the SIP call;
and (c) as a result, the FIP proposal did not include ``information
that is essential to determining whether a FIP for a given state is
even appropriate and justified.'' (Emphasis in original.) This
commenter added--
Only after EPA has received such information, and then taken the
necessary time to evaluate the information and to make judgments as
to whether or not a given state has authority under its SIP and
other elements of state law to regulate GHGs under the PSD program--
i.e., the steps EPA would have to take under CAA section 307(d)(3)
to provide to the public a meaningful ``summary'' of ``the factual
data on which the proposed rule is based'' and ``the major legal
interpretations and policy considerations underlying the proposed
rule''--may EPA propose a FIP for any state that has been determined
to lack that authority. (Emphasis in original.)
We disagree with this comment. The preamble for the FIP proposal
included the CAA section 307(d)(3)-required ``summary'' of the factual
basis and legal interpretations. To reiterate, EPA identified the
states for which EPA was proposing the FIP, 75 FR at 53886 and table
II-1 and 53889/1, and added that EPA would subject other states to the
FIP if they, too, became subject to the SIP call, id. 53886 and table
II-2 and 53889/2; described the timing for the FIP, id. 53889/2-3;
described the substance of the FIP, id. 53889/3-53890/1; and explained
that CAA section 110(c)(1) provided the legal basis, id. 53889/2. The
purpose of the CAA section 307(d)(3) requirements is to provide the
public with adequate notice, and these statements did so by making
clear the circumstances under which EPA was proposing to promulgate a
FIP and the timing and substance of the proposed FIP.
It is true that for any state, whether and when EPA would finalize
the FIP for any state depended on other factors, including whether EPA
would finalize the SIP call for that state, what deadline EPA would
establish, and whether the state would submit its required corrective
SIP revision by that deadline. But the FIP proposal put the public on
notice, with sufficient specificity, as to EPA's plan. In any event,
any FIP is necessarily dependent on other factors, including state
actions. That is, under any circumstances, whether EPA finalizes any
proposed FIP depends on whether (i) if the proposed FIP is based on the
failure of a state to make a required submittal, the state makes the
required submittal; or (ii) if the proposed FIP is based on EPA's
disapproval of a SIP revision, whether the state submits a revised SIP
revision that EPA then approves.
Most broadly, commenters' approach--which is that EPA cannot
propose a FIP in concert with a SIP call, but instead must proceed in
seriatim by completing the SIP call first and then proposing the FIP--
would result in lengthy delays in the establishment of a permitting
authority to process GHG-emitting sources' PSD permit applications. As
a result, commenters' approach could well cause delays in these
sources' ability to undertake construction and modification projects.
We include related comments and responses in the Response to
Comments document.\14\
---------------------------------------------------------------------------
\14\ The Response to Comments document for the FIP can be found
in the docket for this rulemaking.
---------------------------------------------------------------------------
C. Substance of GHG PSD FIP
In the FIP proposal, we stated:
The proposed FIP constitutes the EPA regulations found in 40 CFR
52.21, including the PSD applicability provisions, with a limitation
to assure that, strictly for purposes of this rulemaking, the FIP
applies only to GHGs. Under the PSD applicability provisions in 40
CFR 52.21(b)(50), the PSD program applies to sources that emit the
requisite amounts of any ``regulated NSR pollutant[s],'' including
any air pollutant ``subject to regulation.'' However, in states for
which EPA would promulgate a FIP to apply PSD to GHG-emitting
pollutants, the approved SIP already applies PSD to other air
pollutants. To appropriately limit the scope of the FIP, EPA
proposes in this action to amend 40 CFR 52.21(b)(50) to limit the
applicability provision to GHGs.
We propose this FIP because it would, to the greatest extent
possible, mirror EPA regulations (as well as those of most of the
states). In addition, this FIP would readily incorporate the phase-
in approach for PSD applicability to GHG sources that EPA has
developed in the Tailoring Rule and expects to develop further
through additional rulemaking. As explained in the Tailoring Rule,
incorporating this phase-in approach--including Steps 1 and 2 of the
phase-in as promulgated in the Tailoring Rule--can be most readily
accomplished through interpretation of the terms in the definition
``regulated NSR pollutant,'' including the term ``subject to
regulation.''
In accordance with the Tailoring Rule, * * * the FIP would apply
in Step 1 of the phase-in approach only to ``anyway sources'' (that
is, sources undertaking construction or modification projects that
are required to apply for PSD permits anyway due to their non-GHG
emissions and that emit GHGs in the amount of at least 75,000 tpy on
a CO2e basis) and would apply in Step 2 of the phase-in
approach to both ``anyway sources'' and sources that meet the
100,000/75,000-tpy threshold (that is, (i) sources that newly
[[Page 82251]]
construct and would not be subject to PSD on account of their non-
GHG emissions, but that emit GHGs in the amount of at least 100,000
tpy CO2e, and (ii) existing sources that emit GHGs in the
amount of at least 100,000 tpy CO2e, that undertake
modifications that would not trigger PSD on the basis of their non-
GHG emissions, but that increase GHGs by at least 75,000 tpy
CO2e).
Under the FIP, with respect to permits for ``anyway sources,''
EPA will be responsible for acting on permit applications for only
the GHG portion of the permit, and the state will retain
responsibility for the rest of the permit. Likewise, with respect to
permits for sources that meet the 100,000/75,000-tpy threshold, our
preferred approach--for reasons of consistency--is that EPA will be
responsible for acting on permit applications for only the GHG
portion of the permit, that the state permitting authorities will be
responsible for the non-GHG portion of the permit, and EPA will
coordinate with the state permitting authority as needed in order to
fully cover any non-GHG emissions that, for example, are subject to
BACT because they exceed the significance levels. We recognize that
questions may arise as to whether the state permitting authorities
have authority to permit non-GHG emissions; as a result, we solicit
comment on whether EPA should also be the permitting authority for
the non-GHG portion of the permit for these latter sources.
We propose that the FIP consist of the regulatory provisions
included in 40 CFR 52.21, except that the applicability provision
would include a limitation so that it applies for purposes of this
rulemaking only to GHGs.
75 FR 53889/3 to 53,890/1.
We are finalizing the FIP as we described it in the proposal, for
the same reasons that we indicated in the proposal, all as quoted
earlier in this preamble.
State, industry, and environmental commenters questioned how having
EPA issue the GHG portions of a permit while allowing states under a
FIP to continue to be responsible for issuing the non-GHG portions of a
PSD permit will work in practice. Commenters raised concerns about the
potential for a source to be ``faced with conflicting requirements and
the need to mediate among permit engineers making BACT decisions.''
We appreciate the commenters' concern. We well recognize that
dividing permitting responsibilities between two authorities--EPA for
GHGs and the state for all other pollutants--will require close
coordination between the two authorities to avoid duplication,
conflicting determinations, and delays. We note that this situation is
not without precedent. In many instances, EPA has been the PSD
permitting authority but the state has accepted a delegation for parts
of the PSD program, so that a source has had to go to both the state
and EPA for its permit. In addition, all nonattainment areas in the
nation are in attainment or are unclassifiable for at least one
pollutant, so that every nonattainment area is also a PSD area. In some
of these areas, the state is the permitting authority for nonattainment
new source review (NSR) and EPA is the permitting authority for PSD. As
a result, there are instances in which a new or modifying source in
such an area has needed a nonattainment NSR permit from the state and a
PSD permit from EPA.
EPA is working expeditiously to develop recommended approaches for
EPA regions and affected states to use in addressing the shared
responsibility of issuing PSD permits for GHG-emitting sources. In
addition, as discussed below, we intend for the GHG PSD FIP to remain
in place only as long as necessary for states' SIPs to be approved.
Moreover, in this interim period, we intend to delegate permitting
responsibility to those states that are able to implement it and that
request it. States that request and receive a delegation will be
responsible for issuing both the GHG part and the non-GHG part of the
permit, and that will moot commenters' concerns about split permitting.
EPA's most recent information is that of the seven states for which EPA
is promulgating a FIP, four states have indicated to EPA that they
intend to seek a delegation (Arizona, Idaho, Kansas, and Oregon) and a
fifth has indicated that it is considering seeking a delegation
(Arkansas).\15\
---------------------------------------------------------------------------
\15\ McCarthy Declaration, pp. 136-38, Table II.
---------------------------------------------------------------------------
In addition, beginning on July 1, 2011, those states without
authority to regulate GHG may not be able to issue PSD permits for non-
GHG pollutants to sources that are major only because of their GHG
emissions. This is because under the state's approved SIP, these
sources are not major sources. In this circumstance, EPA will also be
the PSD permitting authority for the non-GHG pollutants, but, as
discussed in detail earlier in this preamble, EPA intends to work
closely with each state to develop mutually acceptable approaches--
including delegation of this authority where possible--to maximize the
opportunity for the state to assume as much of the permitting
responsibilities as possible.
Finally, we are providing regulatory language to address Oregon.
Oregon's EPA-approved PSD SIP differs from the federal program with
respect to which sources are subject to PSD. EPA is promulgating a FIP
for Oregon that is consistent with the intent of the Tailoring Rule and
that accommodates the difference in the Oregon program. That is, as of
January 2, 2011, sources in Oregon that are currently required to get
PSD permits under the approved SIP will be subject to review under the
FIP for greenhouse gases if they exceed the Tailoring Rule thresholds.
As of July 1, 2011, the determination of which sources will be subject
to PSD review for greenhouse gases under the FIP will be consistent
with how applicability is determined under the current Oregon SIP for
other regulated NSR pollutants.
D. Period for GHG PSD FIP To Remain in Place
In the FIP proposal, we stated our intention to leave any
promulgated FIP in place for as short a period as possible, and to
process any corrective SIP revision submitted by the state to fulfill
the requirements of the SIP call as expeditiously as possible.
Specifically, we stated:
After we have promulgated a FIP, it must remain in place until
the state submits a SIP revision and we approve that SIP revision.
CAA section 110(c)(1). Under the present circumstances, we will act
on a SIP revision to apply the PSD program to GHG sources as quickly
as possible. Upon request of the state, we will parallel-process the
SIP submittal. That is, if the state submits to us the draft SIP
submittal for which the state intends to hold a hearing, we will
propose the draft SIP submittal for approval and open a comment
period during the same time as the state hearing. If the SIP
submittal that the state ultimately submits to us is substantially
similar to the draft SIP submittal, we will proceed to take final
action without a further proposal or comment period. If we approve
such a SIP revision, we will at the same time rescind the FIP.
75 FR 53889/2-3.
We continue to have these same intentions. Thus, we reaffirm our
intention to leave the GHG PSD FIP in place only as long as is
necessary for the state to submit and for EPA to approve a SIP revision
that includes PSD permitting for GHG-emitting sources. As discussed in
more detail later in this preamble, EPA continues to believe that the
states should remain the primary permitting authority.
E. Primacy of SIP Process
In the FIP proposal we stated,
This proposal [to promulgate a FIP] is secondary to our
overarching goal, which is to assure that in every instance, it will
be the state that will be that permitting authority. EPA continues
to recognize that the states are best suited to the task of
permitting because they and their sources have experience working
together in the state PSD program to process permit applications.
EPA seeks to remain solely in its primary role of providing
[[Page 82252]]
guidance and acting as a resource for the states as they make the
various required permitting decisions for GHG emissions.
Accordingly, beginning immediately we intend to work closely
with the states--as we have already begun to do since earlier in the
year--to help them promptly develop and submit to us their
corrective SIP revisions that extend their PSD program to GHG-
emitting sources. Moreover, we intend to promptly act on their SIP
submittals. Again, EPA's goal is to have each and every affected
state have in place the necessary permitting authorities by the time
businesses seeking construction permits need to have their
applications processed and the permits issued--and to achieve that
outcome by means of engaging with the states directly through a
concerted process of consultation and support.
EPA is taking up the additional task of proposing this FIP and
the companion SIP Call action only because the Agency believes it is
compelled to do so by the need to assure businesses, to the maximum
extent possible and as promptly as possible, that a permitting
authority is available to process PSD permit applications for GHG-
emitting sources once they become subject to PSD requirements on
January 2, 2011.
In order to provide that assurance, we are obligated to
recognize, as both states and the regulated community already do,
that there may be circumstances in which states are simply unable to
develop and submit those SIP revisions by January 2, 2011, or for
some period of time beyond that date. As a result, absent further
action by EPA, those states' affected sources confront the risk that
they may have to put on hold their plans to construct or modify, a
risk that may have adverse consequences for the economy.
Given these exigent circumstances, EPA proposes this plan,
within the limits of our power, with the intent to make a back-up
permitting authority available--and to send a signal of assurance
expeditiously in order to reduce uncertainty and thus facilitate
businesses' planning. Within the design of the CAA, it is EPA that
must fill that role of back-up permitting authority. This FIP and
the companion SIP Call action fulfill the CAA requirements to
establish EPA in that role.
At the same time, we propose these actions with the intent that
states retain as much discretion as possible in the hand of the
states. In the SIP Call rulemaking, EPA proposes that states may
choose the deadline they consider reasonable for submission of their
corrective SIP revision. If, under CAA requirements, we are
compelled to promulgate a FIP, we invite the affected state to
accept a delegation of authority to implement that FIP, so that it
will still be the state that processes the permit applications,
albeit operating under federal law. In addition, if we are compelled
to issue a FIP, we intend to continue to work closely with the state
to assist in developing and submitting for approval its corrective
SIP revision, so as to minimize the amount of time that the FIP must
remain in place.
75 FR at 53890/1-2.
In this rulemaking, we continue to have the same intentions and for
the same reasons. Thus, we continue to believe that this action is
necessary to ensure that sources in states with inadequate SIPs can
obtain the necessary PSD permits for their GHG emissions. We have
worked closely with states to establish reasonable deadlines for
submitting revised SIPs and are finalizing this FIP based on deadlines
agreed to by the affected states. We will continue to work with states,
as we have done throughout the rulemaking process, to assist in
development and expedite review of revised SIPs. In the meantime,
however, this FIP is necessary for the seven states identified here in
order to provide a permitting authority until an adequate SIP is
submitted and approved.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
OMB has previously approved the information collection requirements
contained in the existing regulations for PSD (see, e.g., 40 CFR 52.21)
and title V (see 40 CFR parts 70 and 71) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0003 and OMB control number 2060-0336 respectively.
The OMB control numbers for EPA's regulations in 40 CFR are listed in
40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this notice on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see 13 CFR 121.201); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; or (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
Although this rule would lead to federal permitting requirements
for certain sources, those sources are large emitters of GHGs and tend
to be large sources. After considering the economic impacts of this
rule on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This final rule will not impose any requirements on small entities.
D. Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C.
1531-1538) for state, local or tribal governments or the private
section. The action imposes no enforceable duty on any state, local or
tribal governments or the private sector. This action merely prescribes
EPA's action for states that have not met their existing obligation for
PSD SIP submittal. Thus, this rule is not subject to the requirements
of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. This action merely
prescribes EPA's action for states that have not met their existing
obligation for PSD SIP submittal.
E. Executive Order 13132--Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action merely prescribes EPA's
action for states that have not met their existing obligation for GHG
PSD SIP submittal. Thus, Executive Order 13132 does not apply to this
action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA
[[Page 82253]]
specifically solicited comment on the proposal for this action from
state and local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action does
not impose a FIP in any tribal area. Thus, Executive Order 13175 does
not apply to this action.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets E.O. 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the E.O. has the
potential to influence the regulation. This action is not subject to
E.O. 13045 because it merely prescribes EPA's action for states that do
not meet their existing obligation for PSD SIP submittal.
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action merely prescribes EPA's
action for states that have not met their existing obligation for PSD
SIP submittal.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This rule merely prescribes EPA's action for states that
have not met their existing obligation for PSD SIP submittal.
K. Determination Under Section 307(d)
Pursuant to section 307(d)(1)(B) of the CAA, this action is subject
to the provisions of section 307(d). Section 307(d)(1)(B) provides that
the provisions of section 307(d) apply to ``the promulgation or
revision of an implementation plan by the Administrator under section
110(c) of this Act.''
L. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action does not constitute a ``major rule'' as defined
by 5 U.S.C. 804(2). Therefore, this action will be effective December
30, 2010.
V. Judicial Review
Section 307(b)(1) of the CAA specifies which Federal Courts of
Appeal have jurisdiction to hear petitions for review of which final
actions by EPA. This section provides, in part, that petitions for
review must be filed in the Court of Appeals for the District of
Columbia Circuit: (i) When the agency action consists of ``nationally
applicable regulations promulgated, or final actions taken, by the
Administrator,'' or (ii) when such action is locally or regionally
applicable, if ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.''
This rule is nationally applicable under CAA section 307(b)(1). The
circumstances that have led to this rulemaking are national in scope
and are substantially the same for each affected state. They include
EPA's promulgation of nationally applicable GHG requirements that, in
conjunction with the operation of the CAA PSD provisions, have resulted
in GHG-emitting sources becoming subject to PSD; as well as EPA's
finding of substantial SIP inadequacy, imposition of a SIP call, and
establishment of a deadline for SIP submittal. Moreover, in this rule,
EPA is applying uniform principles for promulgating the FIP for each of
the affected states, concerning, e.g., timing (that is, that EPA is
promulgating the FIP for each affected state immediately) and scope
(that is, that EPA is applying the FIP for GHG-emitting sources). The
FIP for each affected state has substantially the same, if not
identical, terms. This rulemaking action is supported by a single
administrative record, and does not involve factual questions unique to
the different affected states. In addition, this rule applies to
multiple States across the country, and in several judicial circuits.
For similar reasons, this rule is based on determinations of
nationwide scope or effect. For each of the seven affected States, EPA
is determining that it is appropriate to promulgate the FIP immediately
and to apply it to GHG-emitting sources, but not other sources. These
determinations are the same for each of the states. The other
provisions of the FIP are substantially the same, if not identical, for
each affected state. Moreover, EPA is making these determinations and
promulgating this action within the context of nationwide rulemakings
and interpretation of the applicable CAA provisions, as noted above.
Thus, under section 307(b)(1) of the Act, judicial review of this
final action is available by filing of a petition for review in the
U.S. Court of Appeals for the District of Columbia Circuit by February
28, 2011. Any such judicial
[[Page 82254]]
review is limited to only those objections that were raised with
reasonable specificity in timely comments. Under section 307(b)(2) of
the Act, the requirements of this final action may not be challenged
later in civil or criminal proceedings brought by us to enforce these
requirements.
VI. Statutory Authority
The statutory authority for this action is provided by sections
110, 165, 301, and 307(d)(1)(B) of the CAA as amended (42 U.S.C. 7410,
7475, 7601, and 7407(d)(1)(B)). This action is subject to section
307(d) of the CAA (42 U.S.C. 7407(d)).
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon dioxide, Carbon dioxide equivalents,
Carbon monoxide, Environmental protection, Greenhouse gases,
Hydrofluorocarbons, Incorporation by reference, Intergovernmental
relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone,
Particulate matter, Perfluorocarbons, Reporting and recordkeeping
requirements, Sulfur hexafluoride, Sulfur oxides, Volatile organic
compounds.
Dated: December 23, 2010.
Lisa P. Jackson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.1987 is revised to read as follows:
Sec. 52.1987 Significant deterioration of air quality.
* * * * *
(d) The requirements of sections 160 through 165 of the Clean Air
Act are not met for greenhouse gases since the plan does not include
approvable procedures for permitting major sources of greenhouse gas
emissions. Therefore, the Oregon Department of Environmental Quality
rules identified in paragraph (a) of this section, and the Lane
Regional Air Pollution Authority rules identified in paragraph (b) of
this section, are hereby incorporated by reference with the following
changes and made part of the applicable plan for the State of Oregon:
(1) The definition of ``Regulated NSR pollutant'' at Sec.
52.21(b)(50) and the definition of ``Subject to regulation'' at Sec.
52.21(b)(49) are incorporated by reference, replacing the definition of
``Regulated air pollutant'' at OAR 340-200-0020(97), for the purpose of
greenhouse gases only;
(2) The provisions of Sec. 52.21(q) Public participation are
incorporated by reference for the purposes of EPA permits issued
pursuant to this paragraph; and
(3) All references to ``Director'' in the Oregon Department of
Environmental Quality rules and the Lane Regional Air Pollution
Authority rules incorporated in this paragraph shall mean the EPA
Administrator for the purposes of EPA permits issued pursuant to this
paragraph.
0
3. Section 52.37 is added to read as follows:
Sec. 52.37 What are the requirements of the Federal Implementation
Plans (FIPs) to issue permits under the Prevention of Significant
Deterioration requirements to sources that emit greenhouse gases?
(a) The requirements of sections 160 through 165 of the Clean Air
Act are not met to the extent the plan, as approved, of the states
listed in paragraph (b) of this section does not apply with respect to
emissions of the pollutant GHGs from certain stationary sources.
Therefore, the provisions of Sec. 52.21 except paragraph (a)(1) are
hereby made a part of the plan for each state listed in paragraph (b)
of this section for:
(1) Beginning January 2, 2011, the pollutant GHGs from stationary
sources described in Sec. 52.21(b)(49)(iv), and
(2) beginning July 1, 2011, in addition to the pollutant GHGs from
sources described under paragraph (a)(1) of this section, stationary
sources described in Sec. 52.21(b)(49)(v).
(b) Paragraph (a) of this section applies to:
(1) Arizona, Pinal County; Rest of State (Excludes Maricopa County,
Pima County, and Indian Country);
(2) Arkansas;
(3) Florida;
(4) Idaho;
(5) Kansas;
(6) Wyoming.
(c) For purposes of this section, the ``pollutant GHGs'' refers to
the pollutant GHGs, as described in Sec. 52.21(b)(49)(i).
[FR Doc. 2010-32784 Filed 12-29-10; 8:45 am]
BILLING CODE 6560-50-P