
[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82254-82269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32757]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 70

[EPA-HQ-OAR-2009-0517; FRL-9245-4]
RIN 2060-AQ63


Action To Ensure Authority To Implement Title V Permitting 
Programs Under the Greenhouse Gas Tailoring Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

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SUMMARY: The final greenhouse gas (GHG) Tailoring Rule includes a step-
by-step implementation strategy for issuing Federally-enforceable 
permits to the largest, most environmentally significant sources 
beginning January 2, 2011. In this action, EPA is finalizing its 
proposed rulemaking to narrow EPA's previous approval of State title V 
operating permit programs that apply (or may apply) to GHG-emitting 
sources. Specifically, in this final rule, EPA is narrowing its 
previous approval of certain State permitting thresholds for GHG 
emissions so that only sources that equal or exceed the GHG thresholds 
established in the final Tailoring Rule would be covered as major 
sources by the Federally-approved programs in the affected States. By 
raising the GHG thresholds that apply title V permitting to major 
sources in the affected States, this final rule will reduce the number 
of sources that will be issued Federally-enforceable title V permits 
and thereby significantly reduce permitting burdens for permitting 
agencies and sources alike in those States.

DATES: This final rule is effective on December 30, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2009-0517. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 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

[[Page 82255]]

legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the EPA Docket Center is 
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Jeff Herring, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, NC 27711; 
telephone number: (919) 541-3195; fax number: (919) 541-5509; e-mail 
address: herring.jeff@epa.gov.

SUPPLEMENTARY INFORMATION: For information related to a specific State, 
local, or Tribal permitting authority, please contact the appropriate 
EPA regional office:

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

I. General Information

A. Does this action apply to me?

    Entities affected by this action include States, local permitting 
authorities, and Tribal authorities.
    Entities potentially affected by this rule also include sources in 
all industry groups, which have a direct obligation under the Clean Air 
Act (CAA or Act) to apply for and operate pursuant to a title V permit 
for GHGs that meet the applicability thresholds set forth in the 
Tailoring Rule. The majority of entities potentially affected by this 
action are expected to be in the following groups:

------------------------------------------------------------------------
             Industry group                         NAICS \a\
------------------------------------------------------------------------
Agriculture, fishing, and hunting......  11.
Mining.................................  21.
Utilities (electric, natural gas, other  2211, 2212, 2213.
 systems).
Manufacturing (food, beverages,          311, 312, 313, 314, 315, 316.
 tobacco, textiles, leather).
Wood product, paper manufacturing......  321, 322.
Petroleum and coal products              32411, 32412, 32419.
 manufacturing.
Chemical manufacturing.................  3251, 3252, 3253, 3254, 3255,
                                          3256, 3259.
Rubber product manufacturing...........  3261, 3262.
Miscellaneous chemical products........  32552, 32592, 32591, 325182,
                                          32551.
Nonmetallic mineral product              3271, 3272, 3273, 3274, 3279.
 manufacturing.
Primary and fabricated metal             3311, 3312, 3313, 3314, 3315,
 manufacturing.                           3321, 3322, 3323, 3324, 3325,
                                          3326, 3327, 3328, 3329.
Machinery manufacturing................  3331, 3332, 3333, 3334, 3335,
                                          3336, 3339.
Computer and electronic products         3341, 3342, 3343, 3344, 3345,
 manufacturing.                           4446.
Electrical equipment, appliance, and     3351, 3352, 3353, 3359.
 component manufacturing.
Transportation equipment manufacturing.  3361, 3362, 3363, 3364, 3365,
                                          3366, 3366, 3369.
Furniture and related product            3371, 3372, 3379.
 manufacturing.
Miscellaneous manufacturing............   3391, 3399.
Waste management and remediation.......  5622, 5629.

[[Page 82256]]

 
Hospitals/nursing and residential care   6221, 6231, 6232, 6233, 6239.
 facilities.
Personal and laundry services..........  8122, 8123.
Residential/private households.........  8141.
Non-residential commercial.............  Not available. Codes only exist
                                          for private households,
                                          construction, and leasing/
                                          sales industries.
------------------------------------------------------------------------
\a\ North American Industry Classification System.

B. How is this preamble organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. How is this preamble organized?
II. Overview of the Final Rule
III. Proposed Rule
IV. Final Rule
    A. Narrowing of Title V Programs Under Parts 70 and 52
    B. Legal Basis
    1. Title V Applicability
    2. Minimum Requirements for Approved Title V Programs
    3. Basis for Reconsideration and Narrowing of Approval
    C. Authority for EPA Action
V. Comments and Responses
VI. Effective Date
VII. Statutory and Executive Orders Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211--Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act
    L. Judicial Review

II. Overview of the Final Rule

    This action finalizes EPA's proposal to narrow the approval of 
title V operating permit programs that we included in what we call the 
proposed Tailoring Rule, ``Prevention of Significant Deterioration and 
Title V Greenhouse Gas Tailoring Rule: Proposed Rule,'' 74 FR 55292, 
55340 (October 27, 2009). EPA finalized the Tailoring Rule by Federal 
Register notice dated June 3, 2010, ``Prevention of Significant 
Deterioration and Title V Greenhouse Gas Tailoring Rule: Final Rule,'' 
75 FR 31,514.
    In the final Tailoring Rule, EPA narrowed the applicability of 
title V to GHG-emitting sources at or above specified thresholds by 
setting thresholds at which GHG emissions become subject to regulation 
for Prevention of Significant Deterioration (PSD) and title V 
purposes.\1\ Title V requires all ``major sources,'' and certain other 
sources, to apply for and operate pursuant to an operating permit, 
which is generally issued by a State or local permitting authority 
pursuant to an approved State title V program. As discussed in more 
detail subsequently, ``major source'' under title V includes any source 
that emits, or has the potential to emit, 100 tons per year (tpy) or 
more of any air pollutant. Under EPA's longstanding interpretation, 
codified in the final Tailoring Rule, this requirement applies to 
emissions of air pollutants ``subject to regulation.'' Absent the 
Tailoring Rule, GHGs would become ``subject to regulation'' for title V 
purposes on January 2, 2011. Under the Tailoring Rule, however, a 
source becomes a ``major source'' subject to title V requirements based 
on its GHG emissions only if, as of July 1, 2011, it emits GHGs at or 
above 100,000 tpy measured on a carbon dioxide equivalent 
(CO2e) basis, and it also emits GHGs at levels at or above 
the statutory 100 tpy mass-based threshold generally applicable to all 
pollutants subject to regulation. The Tailoring Rule thresholds 
alleviate the overwhelming administrative burdens and costs that using 
the statutory thresholds alone for the permitting thresholds would 
place on title V permitting authorities and sources.
---------------------------------------------------------------------------

    \1\ Only the title V provisions are relevant for this action.
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    However, in proposing the Tailoring Rule, EPA recognized that even 
after it finalized the Tailoring Rule, some approved State title V 
programs would--until they were revised--continue to use the statutory 
thresholds for purposes of the permitting thresholds, even though the 
States would not have sufficient resources to implement the title V 
program at those levels. Accordingly, the proposed Tailoring Rule 
included a proposal to limit EPA's previous approval of title V 
programs to the extent those provisions required permits for sources 
whose emissions of GHG equal or exceed 100 tpy but are less than the 
permitting threshold of the Tailoring Rule.\2\ When EPA finalized the 
Tailoring Rule, EPA did not finalize that part of the proposal. 
Instead, EPA waited to collect more information from the States to 
determine whether such action was necessary, and if so, for which 
States. As detailed in the following, EPA is now finalizing that part 
of the Tailoring Rule proposal for most permitting authorities.
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    \2\ The permitting threshold originally proposed for the 
Tailoring Rule was 25,000 tpy CO2e. After considering 
public comment on the proposal, EPA increased its estimates of the 
costs and burdens of permitting and finalized a permitting threshold 
of 100,000 tpy CO2e.
---------------------------------------------------------------------------

    EPA asked States to submit information--in the form of letters due 
within 60 days of publication of the Tailoring Rule (which we refer to 
as the 60-day letters)--that would help EPA determine whether it needed 
to narrow its approval of any title V programs. Some States informed 
EPA in their ``60 day letters'' or subsequently that they have adequate 
authority to issue permits to sources of GHGs and that they have 
interpreted the requirements of their approved title V programs 
consistent with the final Tailoring Rule thresholds. Other States and 
permitting authorities either indicated that their programs would 
require changes to permit GHG sources at the final Tailoring Rule 
thresholds, or did not provide a clear indication of the scope of their 
title V programs with respect to GHG sources.
    Thus, in this action, EPA is narrowing its previous approval of 
most State title V programs to the extent the programs require title V 
permits for sources of GHG emissions below the Tailoring Rule 
thresholds. The other portions of these title V programs, including 
portions requiring permits for GHG-emitting sources with emissions at 
or above the Tailoring Rule thresholds, remain approved. States 
affected by this rule will not be required to take any action under the 
Federal CAA as a result of this rule.
    The effect of EPA narrowing its approval in this manner is that 
there will be no Federally-approved title V program that requires 
permits for sources due to emissions of GHG below

[[Page 82257]]

the final Tailoring Rule threshold of 100,000 tpy CO2e (and 
100 tpy mass basis). This action ensures that the Federally-approved 
programs applicable in the affected States do not require title V 
permitting for sources due to their status as major sources of GHG 
emissions as of January 2, 2011.

III. Proposed Rule

    We assume familiarity here with the statutory and regulatory 
background discussed in the preambles for the Tailoring Rule proposal 
and final action, and will only briefly summarize that background here.
    Title V of the CAA requires, among other things, a ``major source'' 
to obtain an operating permit that: consolidates all CAA requirements 
applicable to the source into a document; includes conditions necessary 
to assure compliance with such requirements; provides for review of 
these documents by EPA, States, and the public; and requires permit 
holders to track, report, and annually certify their compliance status 
with respect to their permit requirements.
    A ``major source'' is defined to include, among other things, a 
source that actually emits or has the potential to emit 100 tpy or more 
of ``any air pollutant.'' CAA sections 501(2), 302(j). See also 40 CFR 
70.2 and 71.2. Since 1993, EPA has interpreted the CAA to define a 
``major source'' for purposes of title V to include any source that 
emits, or has the potential to emit, at least 100 tpy of an air 
pollutant subject to regulation under the CAA. Memorandum from Lydia N. 
Wegman, Deputy Director, Office of Air Quality Planning and Standards, 
U.S. EPA, ``Definition of Regulated Air Pollutant for Purposes of Title 
V'' (Apr. 26, 1993); 75 FR 31553-54.
    In recent months, EPA completed four distinct actions related to 
regulation of GHGs under the CAA. These actions include, as they are 
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which we issued in a single final action,\3\ the ``Johnson 
Memo Reconsideration'' (also called the ``Timing Decision''),\4\ the 
``Light-Duty Vehicle Rule'' (LDVR, or simply the ``Vehicle Rule''),\5\ 
and the ``Tailoring Rule.'' \6\ In the Endangerment Finding, which is 
governed by CAA Sec.  202(a), the Administrator exercised her 
judgement, based on an exhaustive review and analysis of the science, 
to conclude that ``six greenhouse gases taken in combination endanger 
both the public health and the public welfare of current and future 
generations.'' 74 FR 66496. The Administrator also found ``that the 
combined emissions of these greenhouse gases from new motor vehicles 
and new motor vehicle engines contribute to the greenhouse gas air 
pollution that endangers public health and welfare under CAA section 
202(a).'' Id. The Endangerment Finding led directly to promulgation of 
the Vehicle Rule, also governed by CAA Sec.  202(a), in which EPA set 
standards for the emission of GHGs for new motor vehicles built for 
model years 2012-2016. 75 FR 25324. The other two actions, the Timing 
Decision and the Tailoring Rule, governed by the PSD and title V 
provisions in the CAA, were issued to address the automatic statutory 
triggering of these programs for GHGs due to the establishment of the 
first controls for GHGs under the Act. More specifically, the Timing 
Decision reiterated EPA's interpretation that only pollutants subject 
to regulation under the Act can trigger major source status for 
purposes of title V, and further concluded that the earliest date GHG 
would be subject to regulation for purposes of title V would be January 
2, 2011. The Tailoring Rule established a series of steps by which PSD 
and title V permit requirements for GHG could be phased in, starting 
with the largest sources of GHG emissions. 75 FR 31514.
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    \3\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \4\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010). This action finalizes EPA's response to a petition for 
reconsideration of ``EPA's Interpretation of Regulations that 
Determine Pollutants Covered by Federal Prevention of Significant 
Deterioration (PSD) Permit Program'' (commonly referred to as the 
``Johnson Memo''), December 18, 2008.
    \5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \6\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    In the proposed Tailoring Rule, EPA proposed a major stationary 
source threshold for purposes of title V of 25,000 tpy for GHG on a 
CO2e basis, for at least a specified period. EPA recognized 
that even so, approved State title V programs would--until they were 
revised--continue to use the statutory threshold of 100 tpy for GHG on 
a mass basis for purposes of the permitting threshold, even though 
permits for sources below the Tailoring Rule threshold were not 
required under Federal regulations and the States would not have 
sufficient resources to implement the title V program at the statutory 
threshold for GHG-emitting sources. This would result in the same 
problems of overwhelming administrative burdens and costs that we 
designed the Tailoring Rule to address. Accordingly, the proposed 
Tailoring Rule included a proposal to limit EPA's previous approval of 
title V programs to the extent those provisions required permits for 
sources whose emissions of GHG equal or exceed 100 tpy but are less 
than the permitting threshold of the Tailoring Rule.
    EPA relied for its authority for the proposed limitations of 
approval on CAA section 301(a), as it incorporates the authority of an 
agency to reconsider its actions, and in the Administrative Procedure 
Act (APA) section 553. See 74 FR 55345. EPA indicated in the proposal 
that it considered and decided against issuing a notice of deficiency 
under CAA section 502(i)(1), in part because EPA did not anticipate 
that program submissions would be necessary following EPA's action to 
limit approvals. 74 FR 55345-55346.
    In the final Tailoring Rule, EPA adopted a 100,000 tpy 
CO2e permitting threshold for title V permitting of GHG 
emissions as of July 1, 2011, committed the agency to take future steps 
addressing smaller sources, and excluded the smallest sources from 
title V permitting for GHG emissions until at least April 30, 2016.
    The mechanism EPA chose in the final rule to implement the 100,000 
tpy CO2e threshold for GHG emissions was slightly different 
than what EPA had proposed. In response to comments from States, in 
place of providing a definition in part 70 of ``major source'' with 
thresholds specific to GHG sources, the final Tailoring Rule amended 
the definition of ``major source'' to reflect EPA's long-standing 
interpretation that applicability for ``major stationary source'' under 
CAA sections 501(2)(B) and 302(j) and 40 CFR 70.2 and 71.2 is triggered 
by sources of pollutants ``subject to regulation.'' EPA then reflected 
the permitting thresholds for GHGs within a definition of the term 
``subject to regulation'' that was also added to parts 70 and 71.
    Some States advised EPA that they would likely be able to implement 
the Tailoring Rule thresholds by interpreting provisions in their 
approved title V programs. A State's implementation of the Tailoring 
Rule in this manner would obviate the need for EPA to narrow its 
approval of the State's title V program. Thus, in the final Tailoring 
Rule, EPA deferred making any decision regarding whether to narrow its 
approval of any title V programs until after learning how States 
intended to implement the Tailoring Rule. Rather than taking final 
action on

[[Page 82258]]

our proposal to limit approval for State title V programs, EPA asked 
States to submit information--in the form of letters due within 60 days 
of publication of the final Tailoring Rule (which we refer to as the 
60-day letters)--that would help EPA determine what action it would 
need to take to ensure that GHG sources would be permitted consistent 
with the final Tailoring Rule, and specifically for which States it 
would need to limit its approval of State title V programs.
    Almost all States submitted 60-day letters. After reviewing the 
letters, some States have indicated that they have been able to 
interpret their existing approved title V programs in a manner 
consistent with the final Tailoring Rule. Other permitting authorities 
indicated that they needed regulatory or legislative changes either to 
implement title V permitting for GHG sources, or else to apply the 
final Tailoring Rule thresholds when they implement title V permitting 
for GHG sources. Some States indicated that some regulatory or 
legislative changes to their title V programs were necessary, but did 
not clearly indicate which types of changes were required. In some 
cases, the State's 60-day letter addressed PSD permitting but not title 
V permitting, or else did not clearly distinguish between the two 
programs in discussing how the State intended to implement permitting 
of GHG sources. Finally, a few States did not submit 60-day letters.
    Most States that need to take some action indicated that they were 
actively in the process of updating their title V programs to be 
consistent with the final Tailoring Rule. Indeed, many programs were 
projected, as of the date of the 60-day letter, to be revised to 
incorporate the Tailoring Rule threshold at the State level before 
January 2, 2011.

IV. Final Rule

A. Narrowing of Title V Programs Under Parts 70 and 52

    EPA is taking final action to narrow its approval of the title V 
program for certain States. In the final Tailoring Rule, EPA 
established levels of GHG emissions for purposes of determining 
applicability of title V. However, most EPA-approved State title V 
programs currently provide that sources of GHGs will become subject to 
title V requirements even where the sources emit GHGs below the final 
Tailoring Rule thresholds. Under the final Tailoring Rule, GHGs emitted 
below the Tailoring Rule thresholds are not treated as a pollutant 
``subject to regulation'' under the CAA (and thus, under the final 
Tailoring Rule, a source emitting GHGs below the Tailoring Rule 
thresholds would not be treated as a major stationary source subject to 
title V on account of its GHG emissions). Thus, EPA is now narrowing 
its approval of most approved title V programs so that those title V 
programs are approved to apply to GHG-emitting sources only if those 
sources emit GHGs at or above the final Tailoring Rule thresholds. EPA 
is accomplishing this by reconsidering and narrowing its previous 
approval of those title V programs to the extent they apply to GHG-
emitting sources that emit below the final Tailoring Rule thresholds.
    In the proposed Tailoring Rule, EPA proposed to narrow its approval 
for all 50 States, as well as the District of Columbia, Puerto Rico, 
and the U.S. Virgin Islands.\7\ EPA now finalizes this narrowing of 
approval for the States with title V programs that will apply to GHG 
emissions at below-Tailoring Rule levels as of January 2, 2011, and for 
States that EPA cannot clearly determine do not fall in this category. 
The States for whom EPA is narrowing its approval of the title V 
program in this action are: Alabama, California, Colorado, District of 
Columbia, Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maine, 
Maryland, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New 
Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South 
Carolina, South Dakota, Tennessee, Utah, Vermont, Virgin Islands, 
Virginia, Washington, West Virginia, and Wisconsin. For all the other 
States--States with no authority to permit sources due to their status 
as major sources of GHG or States which apply the Tailoring Rule 
thresholds by interpretation--EPA is not taking final action on its 
proposal to narrow its approval of the title V program at this time 
because those States will not subject GHG sources with emissions below 
the Tailoring Rule thresholds to the requirements of title V on January 
2, 2011.
---------------------------------------------------------------------------

    \7\ 40 CFR 70.2 defines ``State'' to include any non-Federal 
permitting authority, including local, interstate and statewide 
permitting authorities, and also including the District of Columbia, 
the Commonwealth of Puerto Rico, and U.S. territories, although 
``[w]here such meaning is clear from the context, `State' shall have 
its conventional meaning.'' This notice follows the same approach to 
the use of the term ``State.''
---------------------------------------------------------------------------

    For most States, title V programs are Federally-approved only under 
40 CFR part 70, and EPA need only amend Appendix A to part 70 in order 
to narrow its approval of the title V program. However, in some cases, 
States have chosen to submit their title V programs as part of their 
State implementation plans (SIPs) and EPA has approved those programs 
into the SIP as codified in 40 CFR part 52. Three States [Arizona 
(Pinal County Air Quality Control District)], Minnesota, and Wisconsin) 
whose title V programs require narrowing have title V applicability 
provisions that were Federally approved under both part 70 and part 52. 
For these States, EPA is amending its approval of the title V program 
in both part 70 and part 52, in order to ensure that the scope of the 
approved title V program is consistent in both parts.

B. Legal Basis

    EPA is narrowing its previous approval for most State title V 
programs because of an important flaw in the approved title V programs. 
EPA is rescinding its previous approval for the part of the title V 
program that is flawed, and EPA is leaving in place its previous 
approval for the rest of the program. Since there is no need under 
Federal law to permit sources below the final Tailoring Rule threshold, 
the title V programs whose approval is being narrowed by this action 
will continue to be fully approved under CAA section 502.
    Among the minimum requirements for a title V program are those for 
``adequate personnel and funding to administer the program.'' CAA 
section 502(b)(4). These requirements need to be understood in context 
of Congress' clear concern for ``the need for expeditious action by the 
permitting authority on permit applications and related matters.'' CAA 
section 502(b)(8); see also CAA sections 502(b)(6), 502(b)(7), & 
503(c), 40 CFR 70.4(b)(8).
    The flaw in the prior approved programs is that certain program 
provisions were phrased so broadly that they could, under certain 
circumstances, sweep in more sources than the permitting authority 
could process in an expeditious manner in light of the resources that 
were available or could be made available. Thus, EPA is narrowing the 
scope of its approval of those title V provisions to include, for 
purposes of GHG emissions, only title V permitting for sources emitting 
GHGs at or above final Tailoring Rule thresholds. EPA believes 
permitting at these thresholds will require resources at a level 
consistent with the descriptions of adequate resources the State 
provided, and EPA determined in the final Tailoring Rule that States 
will have adequate resources to issue operating permits to sources 
emitting GHGs at this level.
    As noted above, for three States it is necessary to revise the SIP 
in order to

[[Page 82259]]

narrow the approved title V program. The basis for narrowing the 
program is the same under part 52 as under part 70. Indeed, EPA does 
not believe it would make sense to narrow its approval under part 70 
without also narrowing its approval under part 52. Accordingly, for 
these States EPA is not only exercising its authority to reconsider its 
approval of the title V program, but also its authority to reconsider 
and to correct errors in its approval of a SIP.
    EPA is narrowing its approval of the title V programs for all 
States that have indicated that they have authority under their title V 
programs to issue permits to sources of GHG emissions, but at the 
statutory level of 100 tpy or more on a mass emissions basis. As a 
precautionary measure, EPA is also narrowing its approval for States 
that did not clearly indicate to EPA whether they are in this 
situation. EPA recognizes that the actual status of the States subject 
to this rule varies to some degree; while some States have authority to 
issue permits to sources due to their emissions of GHGs under their 
title V programs but at the statutory threshold only, other States may 
have been able to alter their State regulations but have not yet 
submitted such changes or had them approved by EPA, and still other 
States did not provide a 60-day letter with sufficient information to 
determine the status of their title V permit programs in relation to 
GHG sources. EPA believes it is appropriate to narrow the approved 
title V program for all of these States. In the case of programs that 
have made State-level changes but have not yet received EPA approval 
for those changes, this approach provides an efficient means of 
ensuring that at no time is there a requirement under a Federally-
approved program for sources below the final Tailoring Rule threshold 
to obtain a permit. For this reason, as a precautionary matter, EPA is 
narrowing approval for States that did not inform us that they can 
implement the thresholds in the final Tailoring Rule under their 
current approved programs.
    Some States may lack authority to require permits for GHG sources 
at all. Where there is clear and unambiguous evidence that such State 
programs do not require permits for any sources due to their status as 
a major source of GHG emissions, EPA is not narrowing such programs, 
because they do not present the flaw discussed previously.\8\ There may 
be some States that similarly lack authority to issue title V permits 
to sources due to their status as major sources of GHG emissions, but 
have not clearly articulated that fact to EPA in their 60-day letters. 
EPA intends to narrow its approval for all States where the status of 
the title V program in relation to major sources of GHG is unclear. 
Although it may turn out that some of these programs do not present the 
flaw discussed previously, EPA is only narrowing its approval of 
programs ``to the extent'' they require sources of GHG in excess of the 
threshold to apply for title V permits as major sources of GHG. Thus, 
if indeed a State's program does not require permits for these sources 
at all, there are no consequences to sources or the permitting 
authority from EPA's decision to narrow the scope of the State's 
approval.\9\ On the other hand, if EPA were to refrain from narrowing 
its approval, and then learn that the program indeed does require 
sources that emit or have the potential to emit 100 tpy or more of GHGs 
on a mass basis to apply for title V permits, there would be 
significant adverse consequences for the permitting authority and 
sources, as described previously in this final rule and in the final 
Tailoring Rule. Accordingly, EPA is refraining from narrowing the title 
V programs for States that cannot implement the Tailoring Rule 
thresholds only if EPA is certain that those State programs do not 
require permits for sources due to their emissions of GHG.
---------------------------------------------------------------------------

    \8\ If a State with an approved title V program lacks any 
authority to permit sources that are major sources subject to title 
V as a result of their GHG emissions, then there is no title V 
permit program ``applicable to the source'' and those sources in 
that State have no obligation to apply for a title V permit until 
after such time as a permit program becomes applicable to them. See 
CAA section 503(a). EPA intends to work with States, through program 
revisions, notices of deficiency and/or application of the Federal 
title V program, in order to assure that major sources of GHGs in 
all States are subject to title V programs.
    \9\ Likewise, if a State did not provide sufficient information 
to EPA in a 60-day letter and it turned out that the State could 
apply the permitting thresholds of the final Tailoring Rule under 
its existing approved title V program, there would be no harm to the 
permitting authority or sources as a result of EPA's decision to 
narrow its approval consistent with the final Tailoring Rule 
thresholds.
---------------------------------------------------------------------------

    The following section discusses these issues in more detail, 
beginning with the title V applicability provisions; then the minimum 
State program requirements; and then how the two, read together, gave 
rise to the flaws in the approved State title V programs.
1. Title V Applicability
    Each of the States subject to this rule has an approved title V 
operating permits program and has not clearly indicated to EPA that it 
has the ability to permit sources of GHG consistent with the thresholds 
in the final Tailoring Rule. In most of these States, the approved 
title V program contains applicability provisions that are written 
broadly to include all pollutants subject to regulation under the CAA 
for the purposes of determining whether a source is a major source 
covered by the title V operating permits program. As a result, as soon 
as EPA promulgates a rule regulating a new pollutant under any 
provision of the CAA, these title V programs expand to cover additional 
sources that are major for that new pollutant. Depending on the 
pollutant, and the number and size of sources that emit it, these 
applicability provisions could result in a required significant and 
rapid expansion of the title V program. This is precisely what is 
happening at present, now that GHG will become subject to regulation 
under CAA section 202(a) and will become subject to PSD when emitted 
from certain stationary sources starting on January 2, 2011.
    Importantly, the States affected by this action do not interpret 
their applicability provisions or any other provision in the title V 
programs to incorporate any limits on title V applicability with 
respect to new pollutants, and the programs do not contain any other 
mechanism that would allow the State to interpret applicability more 
narrowly, at least for GHGs. As a result, the affected States' title V 
applicability provisions include no way to limit the speed or extent of 
the expansion a title V program might be required to undergo to address 
new pollutants.
    This sudden expansion of permitting responsibilities is precisely 
what is now happening in the case of GHGs. As described in the Timing 
Decision and final Tailoring Rule, GHG will become subject to 
regulation on January 2, 2011. EPA defined GHGs as the group of six air 
pollutants made up of carbon dioxide, methane, nitrous oxide, sulfur 
hexafluoride, hydrofluorocarbons, and perfluorocarbons. 75 FR 31514, 
31519 (June 3, 2010) (Tailoring Rule discussion); 75 FR 25324 (May 7, 
2010) (LDVR). Absent the limits of the final Tailoring Rule, sources 
that emit or have the potential to emit at least 100 tpy of GHGs would 
be potentially subject to title V permitting as of that date. EPA does 
not have information showing that the approved title V programs in 
States subject to this rule can interpret their programs more narrowly, 
to apply to only GHG-emitting sources at or above the final Tailoring 
Rule thresholds. In contrast, as noted elsewhere, several other States 
are able to interpret their title V programs more narrowly and, as a 
result, are not subject to this action.

[[Page 82260]]

    The scale of the administrative program needed to effectively 
permit all sources emitting GHGs at the 100 tpy level has highlighted 
the unconstrained nature of the title V program's applicability 
provisions. EPA has recognized that immediately subjecting major 
sources of GHGs at the 100 tpy level to title V requirements is 
administratively unmanageable and creates absurd results that were not 
intended by Congress when it enacted title V. Thus, in the final 
Tailoring Rule, EPA implemented limits on when GHGs become ``subject to 
regulation'' for purposes of title V, such that emissions of GHGs will 
not trigger major source status, and thus will not trigger title V 
permit requirements, unless the source emits both 100 tpy of GHG on a 
mass basis and 100,000 tpy CO2e of GHG as of July 1, 2011 or 
later. EPA included this limit in its regulations, and through this 
limit greatly reduced the extent of title V applicability. This limit 
was set at a level at which EPA determined States would have the 
resources to implement a title V program for GHG emissions. By 
contrast, the approved State programs that are subject to this rule do 
not incorporate the thresholds of the final Tailoring Rule. As a 
result, many or all of these State programs implement title V 
applicability for GHG sources more broadly--indeed, much more broadly, 
to far more sources and to much smaller sources--than EPA's regulations 
do. This is problematic to the extent it may interfere with the State's 
ability to meet minimum requirements for title V programs, as discussed 
in the following section.
2. Minimum Requirements for Approved State Title V Programs
    Each of the States subject to this rule submitted a title V program 
for approval. In order to be approved by EPA, the State program was 
required to meet certain minimum requirements laid out in the CAA and 
in 40 CFR part 70. One of these requirements, contained in section 
502(b)(4), specifies that every program must provide ``for adequate 
personnel and funding to administer the program.'' These requirements 
are further detailed in 40 CFR 70.4(b)(6) through (b)(8).
    As noted previously in this rule, and in the Tailoring Rule, the 
CAA also contains several other provisions making clear Congress' 
intent that title V permits be processed in an expeditious manner, and 
these are likewise reflected in 40 CFR part 70. See generally CAA 
section 502 and 40 CFR 70.4.
    Therefore, at the time that the State submitted the title V program 
for EPA approval, the title V program was required to include 
assurances that adequate resources would be available to process title 
V permits in an expeditious manner, according to the requirements of 
the CAA and part 70.
    The title V programs affected by this action, however, will not be 
able to meet these minimum requirements for a title V program as a 
result of their applicability to GHG-emitting sources. In the proposed 
and final Tailoring Rule, EPA stated that on a nationwide basis, 
applying title V to GHG-emitting sources at the 100 tpy level will 
result in far greater numbers of sources (over 6 million) requiring 
permitting than currently do (about 15,000), and the great majority of 
these additional sources would be smaller than the sources currently 
subject to title V. EPA added that the administrative burdens 
associated with permitting these large numbers of small sources would 
overwhelm the affected permitting authorities. As a result, for each 
State, EPA proposed to rescind approval of the part of the title V 
program that applies title V to GHG-emitting sources below the 
Tailoring Rule thresholds. During the comment period on this proposal, 
no authority contested this understanding of the facts, none stated 
that it could administer title V at the 100 tpy levels, and none 
contested the proposal on grounds that it has adequate resources. In 
the final Tailoring Rule, EPA refined, on the basis of comments, the 
precise extent of the administrative burden, but confirmed that the 
burden was overwhelming and that States lacked adequate resources. As 
noted above, in the final Tailoring Rule, EPA requested that States 
submit letters within 60 days of publication of the rule describing how 
they intended to implement title V for GHG-emitting sources. In those 
letters, none of the States claimed they could, or intended to, 
implement the approved title V program at the statutory levels. From 
all this, it is clear that none of the States had included in the title 
V program submitted for approval an adequate plan or strategy to assure 
resources to administer the title V program for their GHG-emitting 
sources at the 100 tpy level.
    We note that there is nothing inherently problematic with a title V 
program submission that did not include the previously-described plan 
to acquire additional resources. Only title V programs that lack 
appropriate constraints to limit title V applicability for new 
pollutants (consistent with Federal law) to match their resources must 
be narrowed to include such constraints.\10\
---------------------------------------------------------------------------

    \10\ As stated earlier, States included in this rule are in this 
situation, or else EPA currently lacks sufficient information to 
determine that they are not in this situation.
---------------------------------------------------------------------------

3. Basis for Reconsideration and Narrowing of Approval
    Based on the previous analysis, it is clear that EPA's approval of 
the title V programs subject to this action was flawed. They each are 
structured in a manner that may impose a title V permitting requirement 
on sources of pollutants newly subject to regulation under the Act 
without limitations, and yet they do not have a plan for acquiring 
resources to adequately permit large new categories of sources. As 
explained previously, the combination of these title V programs' 
broader applicability to additional stationary sources that emit 
pollutants newly subject to regulation, and the failure of the approved 
title V program to plan for adequate resources for that broader 
applicability--and to ensure that permits could be issued consistent 
with the requirements for expeditious processing of permit 
applications--is a flaw in these programs. In short, the title V 
program applicability provisions and the assurances provided in the 
State program submission are mismatched and therefore EPA needs to 
reconsider its approval of these programs. As discussed previously, 
EPA's recently promulgated GHG rules have highlighted this flaw.
    It may be true that at the time the affected States submitted their 
State programs for approval, the precise course of events that have 
recently transpired concerning GHGs and that have exposed the mismatch 
between title V applicability and State assurances may have been 
difficult to foresee. Even so, it could have been generally foreseen 
that the breadth of the affected State program applicability 
provisions, combined with the programs' limited State assurances, was 
at least a potential mismatch that could eventually lead to title V 
applicability greatly outstripping permitting authority resources. EPA 
does not believe it is required to wait for that to occur, and then 
issue a Notice of Deficiency (NOD), to address the issue. Rather, this 
is a flaw in the title V programs that provides a basis for EPA to 
reconsider its approval.
    In the proposed Tailoring Rule, EPA proposed to narrow its approval 
for all approved State programs. EPA now finalizes this narrowing of 
approval for only the States which have indicated

[[Page 82261]]

that their title V programs will apply to sources that emit or have the 
potential to emit at least 100 tpy of GHG as of January 2, 2011, or for 
which EPA has not been able to clearly establish whether or not the 
program will apply to such sources. The States for which EPA is 
narrowing its approval of the approved State title V program in this 
action include: Alabama, California, Colorado, District of Columbia, 
Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, 
Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New 
York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South 
Dakota, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington, 
West Virginia, and Wisconsin. For each of these States, EPA is 
finalizing an amendment to Appendix A of 40 CFR part 70 that will state 
``For any permitting program located in the State, insofar as the 
permitting threshold provisions concern the treatment of sources of GHG 
emissions as major sources for purposes of title V, EPA approves such 
provisions only to the extent they require permits for such sources 
where the source emits or has the potential to emit at least 100,000 
tpy CO2e, as well as 100 tpy on a mass basis, as of July 1, 
2011.'' \11\ EPA is also finalizing very similar language in the SIPs 
of Arizona, Minnesota and Wisconsin in order to ensure that the 
federally approved title V program in each of these States is 
appropriately narrowed under part 52 as well as part 70. The language 
being used for this final narrowing rule reflects minor changes from 
the language proposed in the Tailoring Rule in order to clarify and 
reflect the decisions about permitting thresholds reached in the final 
Tailoring Rule.
---------------------------------------------------------------------------

    \11\ EPA notes that where an approved State program includes 
multiple permitting authorities, EPA is narrowing the approved State 
program if any permitting authority requires narrowing.
---------------------------------------------------------------------------

    EPA notes that the following States have stated either that they 
can permit major sources of GHG in their approved title V program 
consistent with the Tailoring Rule thresholds or that they have no 
authority under their current approved title V program to permit 
sources due to their status as major sources of GHG: Alaska, Arkansas, 
Arizona, Connecticut, Delaware, Florida, Idaho, Indiana, Kentucky, 
Massachusetts, Michigan, Montana, New Jersey, New Mexico, North 
Carolina, North Dakota, Oregon, Puerto Rico, Texas, and Wyoming. 
Accordingly, it is not necessary at present to narrow the title V 
program approval for these States. As noted previously, EPA intends to 
work with these States as necessary, through program revisions, notices 
of deficiency and/or application of the Federal title V program, to 
assure that major sources of GHGs in all States are subject to title V 
programs, but only at the Tailoring Rule thresholds.

C. Authority for EPA Action

    EPA has determined that this flaw in the approved State programs 
warrants reconsideration of the prior program approvals, and narrowing 
of those approvals. EPA believes it may reconsider its prior actions 
under authority inherent in CAA section 502, with further support from 
CAA section 301(a), and the reconsideration mechanisms provided under 
CAA section 307(b) and APA section 553(e).\12\ In addition, with 
respect to the two SIP revisions, EPA has authority to correct errors 
in SIP approvals, as well as to reconsider them.
---------------------------------------------------------------------------

    \12\ See CAA section 307(d) (omitting title V program approvals 
from the list of specific types of rulemakings under the CAA not 
subject to the APA).
---------------------------------------------------------------------------

    In approving the State programs under CAA 502(d), EPA retained 
authority to revise that action. The courts have found that an 
administrative agency has the inherent authority to reconsider its 
decisions, unless Congress specifically proscribes the agency's 
discretion to do so. See, e.g., Gun South, Inc. v. Brady, 877 F.2d 858, 
862 (11th Cir. 1989) (holding that agencies have implied authority to 
reconsider and rectify errors even though the applicable statute and 
regulations do not provide expressly for such reconsideration); Macktal 
v. Chao, 286 F.3d 822, 826-26 (5th Cir. 2002); Trujillo v. General 
Electric Co., 621 F.2d 1084, 1086 (10th Cir. 1980) (``Administrative 
agencies have an inherent authority to reconsider their own decisions, 
since the power to decide in the first instance carries with it the 
power to reconsider''); see also New Jersey v. EPA, 517 F.3d 574 (DC 
Cir. 2008) (holding that an agency normally can change its position and 
reverse a prior decision but that Congress limited EPA's ability to 
remove sources from the list of hazardous air pollutant source 
categories, once listed, by requiring EPA to follow the specific 
delisting process at CAA section 112(c)(9)).\13\
---------------------------------------------------------------------------

    \13\ For additional case law, see Belville Mining Co. V. United 
States, 999 F.2d 989, 997 (6th Cir. 1993); Dun & Bradstreet Corp. v. 
United States Postal Service, 946 F.2d 189, 193 (2d Cir. 1991); Iowa 
Power & Light Co. v. United States, 712 F.2d 1292 (8th Cir. 1983).
---------------------------------------------------------------------------

    Section 301(a) of the CAA, in conjunction with CAA section 502 and 
the case law just described, provides statutory authority for EPA's 
reconsideration action in this rulemaking. Section 301(a) of the CAA 
authorizes EPA ``to prescribe such regulations as are necessary to 
carry out [EPA's] functions'' under the CAA. Reconsidering prior 
rulemakings, when necessary, is part of ``[EPA's] functions'' under the 
CAA. Cf. CAA section 307(b). Furthermore, the case law previously cited 
establishes that a grant of authority to approve State title V programs 
carries with it the inherent right to reconsider that approval, 
particularly since Congress has not prescribed any specific alternative 
mechanism for such reconsideration. Thus, CAA sections 502 and 301(a) 
confer authority upon EPA to undertake this rulemaking.
    EPA finds further support for its authority to narrow its approvals 
in APA section 553(e), which requires EPA to give interested persons 
``the right to petition for the issuance, amendment, or repeal of a 
rule,'' and CAA section 307(b)(1), which expressly contemplates that 
persons may file a petition for reconsideration under certain 
circumstances (at the same time that a rule is under judicial review). 
The right to petition to reconsider, amend, or repeal presumes that an 
agency has the discretion to grant such a petition. If EPA has the 
authority to grant a petition from another person to reconsider, amend 
or repeal a rule if justified under the CAA, then it follows that EPA 
should be considered as having authority to reconsider, amend or repeal 
a rule when it determines such an action is justified under the CAA, 
even without a petition from another person.
    EPA recently used its authority to reconsider prior actions and 
limit its prior approval of a SIP in connection with California 
conformity SIPs. See, e.g., 68 FR 15720, 15723 (discussing prior action 
taken to limit approvals); 67 FR 69139 (taking final action to amend 
prior approvals to limit their duration); 67 FR 46618 (proposing to 
amend prior approvals to limit their duration, based on CAA sections 
110(k) and 301(a)). EPA had previously approved SIPs with emissions 
budgets based on a mobile source model that was current at the time of 
EPA's approval. Later, EPA updated the mobile source model. But, even 
though the model had been updated, emissions budgets would continue to 
be based on the older, previously approved model in the SIPs, rather 
than the updated model. To rectify this problem, EPA conducted a 
rulemaking that revised the previous SIP approvals so that the 
approvals of

[[Page 82262]]

the emissions budgets would expire early, when the new ones were 
submitted by States and found adequate, rather than when a SIP revision 
was approved. This helped California more quickly adjust its 
regulations to incorporate the newer model.
    EPA notes that it considered but decided not to use the NOD 
process, which is explicitly provided for in CAA section 502(i), to 
address the flaw presented by these program approvals. There are 
several reasons why EPA determined that it was neither necessary nor 
appropriate to use the NOD process to address this issue in this rule.
    The CAA provides that the NOD is to be used ``whenever the 
Administrator makes a determination that a permitting authority is not 
adequately administering or enforcing a program'' and provides that 
States must correct the deficiency within 18 months. CAA section 
502(i).
    Here, the problem is not with the way the State is administering or 
enforcing its approved State title V program. States are issuing 
permits, and modifications, and enforcing the various requirements of 
title V as provided for under the Act. The flaw is the mismatch between 
the breadth of the applicability provisions and the limited State 
assurances of adequate resources, in light of the possibility that a 
very large number of new major sources could become subject to title V. 
This flaw does not relate at all to the current administration and 
enforcement of the title V program, but rather to the overbroad nature 
of the underlying structure and scope of the title V program. The 
distinction is further underlined by the fact that section 502(i) 
contemplates that States would need to take corrective action to 
address the notice of deficiency. However, in the case of the flaw 
addressed here, EPA believes that no further State action will be 
necessary to address this mismatch once the approved title V program 
has been narrowed by this action.\14\
---------------------------------------------------------------------------

    \14\ As noted in the Tailoring Rule, there may be good reasons 
for States to update their State laws and regulations to reflect the 
narrowing and the thresholds of the Tailoring Rule, but the States 
will still have fully approved programs, and once the Federally-
approved program is narrowed, the obligation under Federally 
approved programs to apply for a permit will no longer exist for 
sources below the Tailoring Rule thresholds.
---------------------------------------------------------------------------

    EPA views the NOD as specific authority for addressing specific 
circumstances, but concludes that it is not the sole means of changing 
an approved State program, and it is not the appropriate means in these 
circumstances. EPA believes nothing in section 502(i) displaces its 
authority to reconsider prior program approvals and, for the reasons 
described previously in this rule and in the Tailoring Rule proposal, 
concludes that such a reconsideration and narrowing is warranted and 
appropriate.
    With respect to the two SIPs being revised, EPA is also exercising 
its authority to correct errors in SIPs, pursuant to CAA section 
110(k)(6), as well as its authority to reconsider its actions. Under 
CAA section 110(k)(6), once EPA determines that its action in approving 
the PSD SIPs was in error, EPA has the authority to correct the error 
in an ``appropriate'' manner, and through the same process as the 
original approval, but without requiring any further State submission.
    EPA's narrowing of its approval of the title V program corrects an 
error by addressing the flaw previously discussed, that the approved 
program could, under certain circumstances, sweep in more sources than 
the permitting authority could process in an expeditious manner in 
light of the resources that were available or could be made available. 
EPA believes correcting these SIPs is a reasonable exercise of its 
authority for the reasons stated herein and for the reasons stated in 
the PSD Narrowing Rule (``Limitation of Approval of Prevention of 
Significant Deterioration Provisions Concerning Greenhouse Gas 
Emitting-Sources in State Implementation Plans'').

V. Comments and Responses

    Comments: Several industry commenters (4019, 4118, 4691, 5083, 
5140, 5181, 5278, 5317) and one State commenter (4019) generally 
disagreed with our proposal to narrow our approval of previously-
approved title V programs. Specific arguments against the proposed 
approach include the following:
     The EPA has overstated its authority under CAA section 
301(a). The DC Circuit has observed that section 301(a)(1) ``does not 
provide the Administrator with carte blanche authority to promulgate 
any rules, on any matter relating to the CAA, in any manner that the 
Administrator wishes.'' Where the CAA includes express provisions--such 
as section 110(k)(5) (the SIP call provision)--EPA is required to 
follow those provisions. (4019, 5083, 5140, 5181, 5278, 5317).
     The EPA's invocation of 5 U.S.C. 553(e) is legally 
indefensible. The EPA has mentioned no outstanding petition for EPA to 
revisit its PSD SIP approvals, so section 553(e) appears to be 
inapposite. Even where section 553(e) applies, it merely directs 
agencies to allow parties to seek revisions of rules; it plainly does 
not permit agencies to disregard procedural requirements--whether under 
the APA or under organic statutes such as the CAA--that agencies must 
follow in effecting any such revisions. (5317)
    An industry commenter (4298) supports EPA's efforts to limit or 
conform its prior approvals through CAA sections 301(a)(1) and 
110(k)(6) with respect to applicability thresholds. However, the 
commenter believes EPA should take affirmative steps to ensure that 
States immediately either revise their regulations to raise existing 
lower thresholds or demonstrate that they have adequate resources and 
funding to manage their programs utilizing those existing lower 
thresholds.
    The same commenter states that EPA should issue a NOD, under CAA 
section 502(i)(1), to all States concurrent with the final Tailoring 
Rule, unless a State can demonstrate that it has commenced and is 
committed to finalizing any changes necessary under State law to make 
it consistent with the Tailoring Rule (4298). The commenter adds that 
EPA should not finalize any action that would trigger GHG permitting 
until each State program has been amended. Another commenter (5306) 
suggests EPA establish an expeditious deadline for States to submit 
corrective program revisions by adopting model guidelines to help 
inform State rulemaking, and EPA should complete this process by the 
end of 2010. The commenter explains that EPA can promptly issue a 
notice of deficiency and call for expeditious corrective action. See 42 
U.S.C. 7661a(i). (5306).
    Several comments state that there is no provision in title V, 
similar to error correction provisions for SIPs, for EPA to use to 
correct an error in its original approval of a title V program (5140, 
5181, 5278).
    Response: As discussed previously, EPA believes that it has 
authority under sections 502 and 301 to reconsider its approvals of 
State title V programs and under section 110 to reconsider SIP 
approvals and correct errors in the SIP. Section 502(d) explicitly 
requires EPA to approve or disapprove State title V programs, and EPA 
believes under the case law cited previously, this authority inherently 
includes the authority for EPA to reconsider its prior approval. EPA is 
citing CAA 307(b) and APA section 553(e) to indicate that Congress 
understood that EPA had the authority to reconsider its action in 
response to a petition. There is no reason to believe that EPA's 
authority to reconsider its

[[Page 82263]]

action is limited solely to situations where a person has filed a 
petition.\15\
---------------------------------------------------------------------------

    \15\ We further note that it is not clear the comment 
challenging the citation of section 553(e) in the absence of a 
petition was intended to reference title V.
---------------------------------------------------------------------------

    While Congress ``undoubtedly can limit an agency's discretion to 
reverse itself,'' and ``EPA may not construe a statute in a way that 
completely nullifies textually applicable provisions meant to limit its 
discretion,'' New Jersey v. EPA, 517 F.3d 574, 583 (DC Cir. 2008) 
(quotation omitted), there is no evidence that Congress limited EPA's 
discretion to reconsider its decisions with respect to title V program 
approvals, or that EPA's approach would nullify any provisions intended 
to limit its discretion. The only provision that commenters have 
identified as potentially limiting EPA's discretion is section 502(i), 
but that section is explicitly directed to the administration and 
enforcement of an approved program. Where there are problems with how 
an approved program is being implemented, the notice of deficiency 
process provides an avenue for working with States to fix those 
problems. Where, however, EPA realizes (as here) that its approval of a 
program was based on a structural flaw in the program--that is, a 
mismatch between the scope of sources potentially covered and the 
resources to cover them--that may cause future problems with 
administrability, there is no reason to believe that Congress intended 
to limit EPA's ability to reconsider its decision.
    As noted previously, the distinction between current deficiencies 
in the administration and enforcement of the title V program, as 
compared to the overbroad nature of the underlying structure and scope 
of the title V program, is further underlined by the fact that section 
502(i) contemplates that States would need to take corrective action to 
address the notice of deficiency. However, in the case of the flaw 
addressed here, EPA believes that no further State action will be 
necessary once the approved title V program has been narrowed by this 
action.
    The conclusion that Congress did not intend to limit EPA's ability 
to reconsider its decisions is further supported by the fact that 
(unlike the situation the DC Circuit considered in New Jersey v. EPA, 
discussed previously) Congress did not establish any specific 
substantive limits on EPA's discretion in issuing a notice of 
deficiency. Rather, EPA is to issue a notice ``whenever the 
Administrator makes a determination that a permitting authority is not 
adequately administering and enforcing a program * * * '' Section 
502(i)(1). Thus, EPA's decision to reconsider its approval in no way 
nullifies any provisions meant to limit its discretion.
    Finally, the fact that there is no provision similar to section 
110(k)(6) for title V provides no basis for concluding that Congress 
intended to limit EPA's ability to reconsider its approvals. Section 
110(k)(6) was enacted in response to a court decision, Concerned 
Citizens of Bridesburg v. EPA, 836 F.2d 777 (2d Cir. 1987), where the 
court narrowly construed EPA's authority to correct errors in SIP 
approvals as limited to typographical or similar errors. In response, 
Congress added section 110(k)(6) as part of the 1990 amendments to make 
clear that EPA has authority to correct any errors. No court has ever 
suggested that EPA lacks authority to reconsider its decisions to 
approve title V programs, and under the case law the lack of an 
explicit mechanism to correct errors in title V program approvals is 
entirely consistent with EPA's view that such authority is inherent in 
CAA section 502, as discussed previously.
    EPA believes this case law also supports its authority to 
reconsider the approvals into part 52 of two title V programs which are 
being narrowed. Furthermore, EPA believes we have authority not only to 
reconsider these SIP approvals, but also to narrow these SIPs using our 
error correction authority under CAA section 110(k)(6). EPA disagrees 
with commenters who believe that this provision may only be used for 
technical or clerical errors. EPA's view is that Section 110(k)(6) of 
the CAA is available to correct any error EPA made in approving a SIP. 
The text of CAA section 110(k)(6) applies the provision broadly to any 
mistake, and does not limit the provision's applicability to only 
technical or clerical errors. Congress's passage of CAA section 
110(k)(6) in 1990 in fact indicated Congress's intent to reinforce 
EPA's broad authority to unilaterally correct any errors in SIP 
approvals, coming as it did after the Third Circuit adopted a narrow 
interpretation of error correction authority in Concerned Citizens of 
Bridesburg v. U.S. EPA, 836 F.2d 777 (1987).\16\
---------------------------------------------------------------------------

    \16\ For further discussion of SIP-related issues, see the PSD 
Narrowing Rule, particularly section V.A (``Comments Regarding the 
Legal Mechanism for the Current Action'').
---------------------------------------------------------------------------

    EPA notes that the question of whether EPA should have postponed 
promulgation of the Vehicle Rule until each State title V program had 
been revised is not germane to this rule, and EPA is not, in this rule, 
reopening any issue as to the timing of its promulgation of the Vehicle 
Rule. Nonetheless, EPA had compelling reasons to issue the Vehicle Rule 
at the time it did so. In the Vehicle Rule, EPA explained that although 
it has some discretion with respect to the timing of standards, our 
discretion was not unlimited, and that three years had already passed 
since the Supreme Court had directed EPA to take appropriate actions 
under CAA section 202(a). 75 FR 25402. EPA explained further that any 
additional delay in setting standards would frustrate implementation of 
the national program for regulation of motor vehicles, resulting in 
substantial prejudice to vehicle manufacturers and consumers. 75 FR 
25326. EPA also explained that consideration of indirect stationary 
source costs has no relevance to the issue of the appropriate level at 
which to set vehicle emission standards. Vehicle Rule RTC 5-456.
    As noted previously, once the Federally-approved program is 
narrowed, the obligation under Federally approved programs to apply for 
a permit will no longer exist for sources below the Tailoring Rule 
thresholds. Further, EPA notes that the Agency has no authority to 
amend State law, but the majority of States have informed EPA that they 
are revising their State programs to incorporate the thresholds in the 
final Tailoring Rule for GHG-emitting sources. Indeed, many programs 
report that these changes will be in place by January 2, 2011. Other 
programs report that their changes will be implemented by the spring of 
2011, which should be timely for State law purposes in light of the 
fact that sources newly subject to title V generally have up to a year 
to file their application.
    EPA is continuing to work with States to implement the final 
Tailoring Rule and title V permitting for GHG sources. EPA intends to 
use program revisions, notices of deficiency and/or application of the 
Federal title V program, as appropriate, in order to assure that GHG 
sources in all States are subject to title V programs (and that those 
programs are not overwhelmed by permitting sources below the Tailoring 
Rule thresholds). EPA reiterates that once the Federally-approved 
program is narrowed (in this action), the obligation under Federally 
approved programs to apply for a permit will no longer exist for 
sources below the Tailoring Rule thresholds. EPA reiterates further 
that this approach is preferable to the NOD process for States subject 
to this action and that it is not necessary to issue notices of 
deficiency as part of this rulemaking.

[[Page 82264]]

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, 
APA section 553(d) provides exceptions to this requirement for good 
cause and for any action that grants or recognizes an exemption or 
relieves a restriction. The effect of this rule is to relieve many 
small sources (and permitting authorities) from permitting obligations 
under title V and to address the potential for permitting authorities 
to be overwhelmed by processing permits not required under 40 CFR part 
70. Therefore, EPA finds that there is good cause for an immediate 
effective date, and that an immediate effective date is consistent with 
the purposes underlying APA section 553(d). In addition, since this is 
not a major rule under the Congressional Review Act (CRA), the 60-day 
delay in effective date required for major rules under the CRA does not 
apply. This rule is thus effective upon publication.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' because it will 
raise novel legal or policy issues. Accordingly, EPA submitted this 
action to the Office of Management and Budget (OMB) for review under EO 
12866 and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Instead, this will significantly reduce costs incurred by sources and 
permitting authorities relative to the costs that would be incurred if 
EPA did not revise this rule. In the final Tailoring Rule, EPA stated 
that based on its GHG threshold data analysis, it estimated that over 6 
million new facilities nationally would be required to obtain operating 
permits based on applying an emissions threshold for major source 
status of 100 tpy of GHG emissions on a mass basis. This was compared 
with the approximately 15,000 title V permits that have been issued to 
date. Thus, without the final Tailoring Rule, the administrative burden 
for permitting GHG emissions would increase 400-fold, an unmanageable 
increase. The current action takes further steps to implement the 
burden-reduction implemented by the final Tailoring Rule by raising the 
GHG thresholds in the approvals of the title V programs of the 
identified State and local agencies from 100 tpy to the higher 
thresholds required under the final Tailoring Rule (100,000 tpy CO2e 
under title V during step 2 of the final Tailoring Rule 
implementation). However, OMB has previously approved the information 
collection requirements contained in the existing regulations under 40 
CFR part 70 under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. and has assigned OMB control number 2060-0336. The 
OMB control numbers for EPA's regulations in 40 CFR are listed in 40 
CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In making 
such determinations, the impact of concern is any significant adverse 
economic impact on small entities (5 U.S.C. 603 and 604). This rule 
will relieve Federal regulatory burdens for affected small entities, 
including small businesses that are subject to title V permitting in 
the affected States by raising the GHG applicability thresholds in 
those States to the levels specified in the final Tailoring Rule, which 
in turn, will result that fewer sources being subject to title V 
permitting in those States. Thus, the program changes provided by this 
rule will not result in a significant economic impact on a substantial 
number of small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector. The action is merely an administrative action designed to 
ensure consistency with the requirements of the final Tailoring Rule. 
This action does not require any State or local permitting agency or 
private entity to take on any new regulatory burdens; any burden 
resulting from changing State or local GHG thresholds was already 
accounted for in the final Tailoring Rule, which already imposes the 
higher GHG thresholds addressed by this action. Thus, this action is 
not subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule is 
expected to result in cost savings and administrative burden reduction 
for affected permitting agencies and sources in the affect States, 
including governments.

E. Executive Order 13132--Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action merely seeks to reduce 
the number of sources subject to title V permitting in the affected 
States by raising the GHG thresholds in those States to the levels 
specified in the final Tailoring Rule, resulting in a significant 
reduction in burdens for affected State and local agencies. Thus, 
Executive Order 13132 does not apply to this action. In the spirit of 
Executive Order 13132, and consistent with EPA policy to promote 
communications between EPA and State and local governments, EPA 
specifically solicited comment on the proposed action from State and 
local officials.

[[Page 82265]]

F. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    Subject to Executive Order 13175 (65 FR 67249, November 9, 2000) 
EPA may not issue a regulation that has Tribal implications, that 
imposes substantial direct compliance costs, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by Tribal governments, or 
EPA consults with Tribal officials early in the process of developing 
the proposed regulation and develops a Tribal summary impact statement.
    EPA has concluded that this action may have Tribal implications. 
However, it will neither impose substantial direct compliance costs on 
Tribal government, nor preempt Tribal law. There are no Tribal 
authorities with an EPA-approved part 70 title V permitting program to 
date;\17\ however, this may change in the future.
---------------------------------------------------------------------------

    \17\ One Tribe is operating a title V permit program pursuant to 
a delegation under part 71.
---------------------------------------------------------------------------

    EPA consulted with Tribal officials early in the process of 
developing the final Tailoring Rule, which the current rule helps to 
implement, to allow them to have meaningful and timely input into its 
development. EPA specifically solicited comments from Tribal officials 
on the proposal for this approach to narrowing title V program 
approvals, which was part of the GHG Tailoring Rule proposal (74 FR 
55292, October 27, 2009). EPA consulted with Tribal officials early in 
the regulatory development process for the GHG Tailoring Rule, 
including by publishing an Advanced Notice of Proposed Rulemaking (73 
FR 44354, July 30, 2009), where we received several comments from 
Tribal officials which were considered in the proposed and final rules.

G. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse energy effects because it does 
not create any new requirements for sources in the energy supply, 
distribution, or use sectors.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898--Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has concluded that it is not practicable to determine whether 
there would be disproportionately high and adverse human health or 
environmental effects on minority and/or low income populations from 
this rule. This rule is necessary in order to allow for the continued 
implementation of permitting requirements established in the Clean Air 
Act. Specifically, without this rule, the affected States' CAA title V 
permitting programs would become overwhelmed and unmanageable by the 
untenable number of GHG sources that would become newly subject to 
them. This would result in severe impairment of the functioning of 
these programs with potentially adverse human health and environmental 
effects nationwide. Under this rule and the findings under the final 
Tailoring Rule, EPA is ensuring that the affected States' CAA 
permitting programs continue to operate by limiting their applicability 
to the maximum number of sources the programs can possibly handle. This 
approach is consistent with congressional intent as it phases in 
applicability, starting with the largest sources initially, and then 
other sources over time, so as not to overwhelm State permitting 
programs. By doing so, this rule allows for the maximum degree of 
environmental protection possible while providing regulatory relief for 
the unmanageable burden that would otherwise exist. Therefore, we 
believe it is not practicable to identify and address 
disproportionately high and adverse human health or environmental 
effects on minority populations and low income populations in the 
United States under this final rule, though we do believe that this 
rule will ensure that States can continue to issue title V permits to 
significant sources of air pollution.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 30, 2010.

L. Judicial Review

    Under section 307(b)(1) of the Act, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the District of Columbia Circuit by February 28, 2011.

[[Page 82266]]

Any such judicial review is limited to only those objections that are 
raised with reasonable specificity in timely comments. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. Under section 307(b)(2) of the Act, the requirements of 
this final action may not be challenged later in civil or criminal 
proceedings brought by us to enforce these requirements. Pursuant to 
section 307(d)(1)(V) of the Act, the Administrator determines that this 
action is subject to the provisions of section 307(d). Section 
307(d)(1)(V) provides that the provisions of section 307(d) apply to 
``such other actions as the Administrator may determine.'' This action 
finalizes some, but not all, elements of a previous proposed action--
the Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule Proposed Rule (74 FR 55292, October 27, 2009).
    Section 307(b)(1) of the CAA indicates which Federal Courts of 
Appeal have jurisdiction for petitions of review of final actions by 
EPA. This section provides, in part, that petitions for review must be 
filed in the Court of Appeals for the District of Columbia Circuit: (i) 
When the agency action consists of ``nationally applicable regulations 
promulgated, or final actions taken, by the Administrator,'' or (ii) 
when such action is locally or regionally applicable, if ``such action 
is based on a determination of nationwide scope or effect and if in 
taking such action the Administrator finds and publishes that such 
action is based on such a determination.''
    This rule narrowing approvals of title V programs is ``nationally 
applicable'' within the meaning of section 307(b)(1). This rule narrows 
the approval of most approved title V programs across the country. At 
the core of this rulemaking is EPA's interpretation of its authority to 
reconsider its prior approvals under the Clean Air Act, and its 
application of that interpretation to areas across the country. EPA is 
finalizing this rule with a goal of ensuring that no State will become 
unable to implement national Clean Air Act requirements, including 
those for permitting sources of greenhouse gases. This action is being 
taken on the basis of a single administrative record. The factual 
questions in this rule are not unique to particular geographical areas, 
but are asked uniformly of all States. The large number of States, 
spanning much of the country, being affected, the common core of 
knowledge and analysis involved in formulating the rule, and the common 
legal interpretation advanced of section 502 and other sections of the 
Clean Air Act, all combine to make this a nationally applicable rule.
    For the same reasons, the Administrator also is finding that this 
action is based on determinations of nationwide scope and effect for 
the purposes of section 307(b)(1). This is particularly appropriate 
because, in the report on the 1977 Amendments that revised section 
307(b)(1) of the CAA, Congress noted that the Administrator's 
determination that an action is of ``nationwide scope or effect'' would 
be appropriate for any action that has a scope or effect beyond a 
single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 
1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this 
rulemaking extends to numerous judicial circuits since most approved 
title V programs across the country are affected by this action. EPA 
also applied a consistent analytical approach broadly across the 
country to determine which action to take, and for which States. EPA 
used a nationally applicable, uniform legal interpretation of section 
502 and other sections of the Clean Air Act and of EPA's general 
authority in conducting this analysis. In these circumstances under 
section 307(b)(1), the Administrator is finding the rule to be based on 
determinations of ``nationwide scope or effect'' and for jurisdiction 
to be in the DC Circuit.
    Thus, any petitions for review of the narrowing of title V program 
approvals must be filed in the Court of Appeals for the District of 
Columbia Circuit by February 28, 2011.

Statutory Authority

    The statutory authority for this action is provided by sections 
110, 301 and 502 of the CAA as amended (42 U.S.C. 7410, 7601 and 
7661a). This action is also subject to section 307(d) of the CAA (42 
U.S.C. 7407(d)).

List of Subjects

40 CFR Part 52

    Administrative practice and procedure, Air pollution control, 
Carbon dioxide, Carbon dioxide equivalents, Environmental protection, 
Greenhouse gases, Hydrofluorocarbons, Intergovernmental relations, 
Methane, Nitrous oxide, Perfluorocarbons, Reporting and recordkeeping 
requirements, Sulfur hexafluoride.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon dioxide, Carbon dioxide equivalents, 
Greenhouse gases, Hydrofluorocarbons, Intergovernmental relations, 
Methane, Nitrous oxide, Perfluorocarbons, Reporting and recordkeeping 
requirements, Sulfur hexafluoride.

    Dated: December 23, 2010.
Lisa P. Jackson,
Administrator.

0
For reasons stated in the preamble, title 40, chapter I of the Code of 
Federal Regulations is amended as set forth in the following.

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


0
2. Section 52.151 is added to subpart D to read as follows:


Sec.  52.151  Operating permits.

    Insofar as the permitting threshold provisions in the Pinal County 
Code of Regulations for the Pinal County Air Quality Control District 
concern the treatment of sources of greenhouse gas emissions as major 
sources for purposes of title V operating permits, EPA approves such 
provisions only to the extent they require permits for such sources 
where the source emits or has the potential to emit at least 100,000 
tpy CO2 equivalent emissions, as well as 100 tpy on a mass 
basis, as of July 1, 2011.


0
3. Section 52.1233 is revised by redesignating the existing text as 
paragraph (a) and adding a new paragraph (b) to read as follows:


Sec.  52.1233  Operating permits.

* * * * *
    (b) For any permitting program located in the State, insofar as the 
permitting threshold provisions in Chapter 7007 rules concern the 
treatment of sources of greenhouse gas emissions as major sources for 
purposes of title V operating permits, EPA approves such provisions 
only to the extent they require permits for such sources where the 
source emits or has the potential to emit at least 100,000 tpy 
CO2 equivalent emissions, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

0
4. Section 52.2590 is added to subpart YY to read as follows:


Sec.  52.2590  Operating permits.

    For any permitting program located in the State, insofar as the 
permitting

[[Page 82267]]

threshold provisions in Chapter NR 407 of the Wisconsin Administrative 
Code concern the treatment of sources of greenhouse gas emissions as 
major sources for purposes of title V operating permits, EPA approves 
such provisions only to the extent they require permits for such 
sources where the source emits or has the potential to emit at least 
100,000 tpy CO2 equivalent emissions, as well as 100 tpy on 
a mass basis, as of July 1, 2011.

PART 70--[AMENDED]

0
5. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


0
6. Appendix A to Part 70 is amended as follows:
0
a. By adding paragraph (d) under Alabama; and
0
b. By adding paragraph (jj) under California;
0
c. By adding paragraph (c) under Colorado;
0
d. By adding paragraph (d) under District of Columbia;
0
e. By adding paragraph (c) under Georgia;
0
f. By adding paragraph (d) under Hawaii;
0
g. By adding paragraph (c)under Illinois;
0
h. By adding paragraph (m) under Iowa;
0
i. By adding paragraph (e) under Kansas;
0
j. By adding paragraph (c) under Louisiana;
0
k. By adding paragraph (c) under Maine;
0
l. By adding paragraph (d) under Maryland;
0
m. By adding paragraph (d) under Minnesota;
0
n. By adding paragraph (c) under Mississippi;
0
o. By adding paragraph (x) under Missouri;
0
p. By adding paragraph (k) under Nebraska, City of Omaha; Lincoln-
Lancaster County Health Department;
0
q. By adding paragraph (d) under Nevada;
0
r. By adding paragraph (c) under New Hampshire;
0
s. By adding paragraph (e) under New York;
0
t. By adding paragraph (d) under Ohio;
0
u. By adding paragraph (c) under Oklahoma;
0
v. By adding paragraph (c) under Pennsylvania;
0
w. By adding paragraph (c) under Rhode Island;
0
x. By adding paragraph (c) under South Carolina;
0
y. By adding paragraph (c) under South Dakota;
0
z. By adding paragraph (f) under Tennessee;
0
aa. By adding paragraph (c) under Utah;
0
bb. By adding paragraph (c) under Vermont;
0
cc. By adding paragraph (c) under Virgin Islands;
0
dd. By adding paragraph (c) under Virginia;
0
ee. By adding paragraph (j) under Washington;
0
ff. By adding paragraph (f) under West Virginia; and
0
gg. By adding paragraph (c) under Wisconsin.
    Additions to the Appendix are set out to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating 
Permits Programs

* * * * *

Alabama

* * * * *
    (d) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

California

* * * * *
    (jj) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Colorado

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

District of Columbia

* * * * *
    (d) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Georgia

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Hawaii

* * * * *
    (d) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Illinois

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Iowa

* * * * *
    (m) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Kansas

* * * * *
    (e) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Louisiana

* * * * *

[[Page 82268]]

    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Maine

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Maryland

* * * * *
    (d) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Minnesota

* * * * *
    (d) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Mississippi

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Missouri

* * * * *
    (x) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Nebraska; City of Omaha; Lincoln-Lancaster County Health Department

* * * * *
    (k) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Nevada

* * * * *
    (d) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

New Hampshire

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

New York

* * * * *
    (e) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Ohio

* * * * *
    (d) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Oklahoma

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Pennsylvania

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *

Rhode Island

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

South Carolina

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

South Dakota

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Tennessee

* * * * *
    (f) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *
* * * * *

[[Page 82269]]

Utah

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Vermont

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Virgin Islands

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Virginia

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Washington

* * * * *
    (j) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

West Virginia

* * * * *
    (f) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.

Wisconsin

* * * * *
    (c) For any permitting program located in the State, insofar as 
the permitting threshold provisions concern the treatment of sources 
of GHG emissions as major sources for purposes of title V, EPA 
approves such provisions only to the extent they require permits for 
such sources where the source emits or has the potential to emit at 
least 100,000 tpy CO2e, as well as 100 tpy on a mass 
basis, as of July 1, 2011.
* * * * *
[FR Doc. 2010-32757 Filed 12-29-10; 8:45 am]
BILLING CODE 6560-50-P


