6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0107; FRL-xxxx-x]

RIN-2060-AQ08

Action to Ensure Authority to Issue Permits under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions:  Finding of Substantial Inadequacy and SIP Call

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

SUMMARY:  The EPA is proposing to find that 16 states with EPA-approved
state implementation plan (SIP) New Source Review Prevention of
Significant Deterioration (PSD) programs are substantially inadequate to
meet Clean Air Act (CAA) requirements because they do not appear to
apply PSD requirements to GHG-emitting sources.  For each of these
states, EPA proposes to require the state (through a "SIP Call") to
revise its SIP as necessary to correct such inadequacies.  EPA proposes
an expedited schedule for states to submit their corrective SIP
revision, in light of the fact that as of January 2, 2011, certain
GHG-emitting sources will become subject to the PSD requirements and
will not be able to construct or modify unless they have a PSD permit. 
As for the rest of the states with approved SIP PSD programs, EPA
solicits comment on whether their PSD programs do or do not apply to
GHG-emitting sources.  If, on the basis of information EPA receives, EPA
concludes that the SIP for such a state does not apply the PSD program
to GHG-emitting sources, then EPA will proceed to also issue a finding
of substantial inadequacy and a SIP Call for that state.  In a companion
notice, EPA proposes a federal implementation plan (FIP), which EPA
would finalize if a state fails to make the required SIP submission and
which would authorize EPA to issue the PSD permits to the GHG sources.  

DATES:  Comments.  Comments must be received on or before [INSERT DATE
30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES:  Submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2010-0107 by one of the following methods:

 HYPERLINK "http://www.regulations.gov/" www.regulations.gov :  Follow
the online instructions for submitting comments.

E-mail:   HYPERLINK "mailto:a-and-r-docket@epa.gov" 
a-and-r-docket@epa.gov .

Fax: (202) 566-9744

Mail:  Attention Docket ID No. EPA-HQ-OAR-2010-0107, U.S. Environmental
Protection Agency, EPA West (Air Docket), 1200 Pennsylvania Avenue, NW,
Mail code: 6102T, Washington, DC 20460.  Please include a total of 2
copies.  In addition, please mail a copy of your comments on the
information collection provisions to the Office of Information and
Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk
Officer for EPA, 725 17th Street, NW, Washington, DC 20503.  

Hand Delivery:  U.S. Environmental Protection Agency, EPA West (Air
Docket), 1301 Constitution Avenue, Northwest, Room 3334, Washington, DC
20004, Attention Docket ID No. EPA-HQ-OAR-2010-0107.  Such deliveries
are only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed information.

Instructions.  Direct your comments to Docket ID No.
EPA-HQ-OAR-2010-0107.  EPA's policy is that all comments received will
be included in the public docket without change and may be made
available online at  HYPERLINK "http://www.regulations.gov"
www.regulations.gov , including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute.  Do not submit information that you consider to
be CBI or otherwise protected through  HYPERLINK
"http://www.regulations.gov/" www.regulations.gov  or e-mail.  The 
HYPERLINK "http://www.regulations.gov/" www.regulations.gov  Web Site is
an "anonymous access" system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment.  If you send an e-mail comment directly to EPA without
going through  HYPERLINK "http://www.regulations.gov/"
www.regulations.gov , your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet.  If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit.  If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.  Electronic files should avoid the use of special
characters, avoid any form of encryption, and be free of any defects or
viruses.  For additional information about EPA's public docket visit the
EPA Docket Center homepage at  HYPERLINK
"http://www.epa.gov/epahome/dockets.htm" www.epa.gov/epahome/dockets.htm
.  For additional instructions on submitting comments, go to section I.C
of the SUPPLEMENTARY INFORMATION section of this document.

Docket.  All documents in the docket are listed in the  HYPERLINK
"http://www.regulations.gov/" www.regulations.gov  index.  Although
listed in the index, some information is not publicly available, e.g.,
CBI or other information whose disclosure is restricted by statute. 
Certain other material, such as copyrighted material, will be publicly
available only in hard copy.  Publicly available docket materials are
available either electronically in  HYPERLINK
"http://www.regulations.gov/" www.regulations.gov  or in hard copy at
the U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West
Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC.  The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays.  The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Air
Docket is (202) 566-1742. 

FOR FURTHER INFORMATION CONTACT:  Ms. Lisa Sutton, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-3450; fax number: (919) 541-5509; e-mail
address:    HYPERLINK "mailto:sutton.lisa@epa.gov"  sutton.lisa@epa.gov
.

SUPPLEMENTARY INFORMATION:

For questions related to a specific state, local, or tribal permitting
authority, or to submit information requested in this action, please
contact the appropriate EPA regional office:

EPA Regional office	Contact for regional office (person, mailing
address, telephone number)	Permitting authority

I	Dave Conroy, Chief, Air Programs Branch,

EPA Region 1, 5 Post Office Square, Suite 100, Boston, MA  02109-3912,
(617) 918-1661.	Connecticut, Massachusetts, Maine, New Hampshire, Rhode
Island, and Vermont.

II	Raymond Werner, Chief, Air Programs Branch, EPA Region 2, 290
Broadway, 25th Floor, New York, NY  10007-1866, (212) 637-3706.	New
Jersey, New York, Puerto Rico, and Virgin Islands.

III	Kathleen Anderson, Chief, Permits and Technical Assessment Branch,
EPA Region 3, 1650 Arch Street, Philadelphia, PA  19103-2029, (215)
814-2173. 	District of Columbia, Delaware, Maryland, Pennsylvania,
Virginia, and West Virginia.

IV	Dick Schutt, Chief, Air Planning Branch, EPA Region 4, Atlanta
Federal Center, 61 Forsyth Street, SW, Atlanta, GA  30303-3104, (404)
562-9033.	Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, and Tennessee.

V	J. Elmer Bortzer, Chief, Air Programs Branch (AR-18J), EPA Region 5,
77 West Jackson Boulevard, Chicago, IL  60604-3507, (312) 886-1430.
Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

VI	Jeff Robinson, Chief, Air Permits Section, EPA Region 6, Fountain
Place 12th Floor, Suite 1200, 1445 Ross Avenue, Dallas, TX  75202-2733,
(214) 665-6435.	Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.

VII	Mark Smith, Chief, Air Permitting and Compliance Branch, EPA Region
7, 901 North 5th Street, Kansas City, KS  66101, (913) 551-7876.	Iowa,
Kansas, Missouri, and Nebraska.

VIII	Carl Daly, Unit Leader, Air Permitting, Monitoring & Modeling Unit,
EPA Region 8, 1595 Wynkoop Street, Denver, CO  80202-1129, (303)
312-6416.	Colorado, Montana, North Dakota, South Dakota, Utah, and
Wyoming.

IX	Gerardo Rios, Chief, Permits Office, EPA Region 9, 75 Hawthorne
Street, San Francisco, CA  94105, (415) 972-3974.	Arizona; California;
Hawaii and the Pacific Islands; Indian Country within Region 9 and
Navajo Nation; and Nevada.

X	Nancy Helm, Manager, Federal and Delegated Air Programs Unit, EPA
Region 10, 1200 Sixth Avenue, Suite 900, Seattle, WA  98101, (206)
553-6908.	Alaska, Idaho, Oregon, and Washington.



I.	General Information

A.	Does this action apply to me?

Entities potentially affected by this rule include states, local
permitting authorities, and tribal authorities.  Any SIP-approved PSD
air permitting regulation that is not structured such that it includes
GHGs among pollutants subject to the PSD program will potentially be
found to be substantially inadequate to meet CAA requirements, under CAA
110(k)(5), and the state will potentially be affected by this rule.  For
example, if a state's PSD regulation identifies its regulated NSR
pollutants by specifically listing each individual pollutant and the
list omits GHGs, then the regulation is substantially inadequate.

Entities potentially affected by this rule also include sources in all
industry groups, which have a direct obligation under the CAA to obtain
a PSD permit for GHGs for projects that meet the applicability
thresholds set forth in the Tailoring Rule.  This independent obligation
on sources is specific to PSD and derives from CAA 165(a).  Any source
that is subject to a state PSD air permitting regulation not structured
to apply to GHG-emitting sources will potentially rely on this rule to
obtain a permit that contains emission limitations that conform to
requirements under CAA 165(a).  The majority of entities potentially
affected by this action are expected to be in the following groups:

Industry Group	NAICSa

Utilities (electric, natural gas, other systems)	2211, 2212, 2213

Manufacturing (food, beverages, tobacco, textiles, leather)	311, 312,
313, 314, 315, 316

Wood product, paper manufacturing	321, 322

Petroleum and coal products manufacturing	32411, 32412, 32419

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 manufacturing	3271, 3272, 3273, 3274, 3279

Primary and fabricated metal manufacturing	3311, 3312, 3313, 3314, 3315,
3321, 3322, 3323, 3324, 3325, 3326, 3327, 3328, 3329

Machinery manufacturing	3331, 3332, 3333, 3334, 3335, 3336, 3339

Computer and electronic products manufacturing	3341, 3342, 3343, 3344,
3345, 4446

Electrical equipment, appliance, and component manufacturing	3351, 3352,
3353, 3359

Transportation equipment manufacturing	3361, 3362, 3363, 3364, 3365,
3366, 3366, 3369

Furniture and related product manufacturing	3371, 3372, 3379

Miscellaneous manufacturing	3391, 3399

Waste management and remediation	5622, 5629

Hospitals/nursing and residential care facilities	6221, 6231, 6232,
6233, 6239

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.	Where can I get a copy of this document and other related
information?

In addition to being available in the docket, an electronic copy of this
proposal will also be available on the World Wide Web.  Following
signature by the EPA Administrator, a copy of this notice will be posted
on the EPA's NSR Web Site, under Regulations & Standards, at   HYPERLINK
"http://www.epa.gov/nsr"  www.epa.gov/nsr .

C.	What should I consider as I prepare my comments for EPA?

1.  Submitting CBI.  Do not submit this information to EPA through  
HYPERLINK "http://www.regulations.gov"  www.regulations.gov  or e-mail. 
Clearly mark the part or all of the information that you claim to be
CBI.  For CBI information in a disk or CD ROM that you mail to EPA, mark
the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI.  In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket.  Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.  Send or deliver information identified as CBI only to the following
address: Roberto Morales, OAQPS Document Control Officer (C404-02), U.S.
EPA, Research Triangle Park, NC 27711, Attention Docket ID No.
EPA-HQ-OAR-2010-0107.

2.  Tips for preparing your comments.  When submitting comments,
remember to:

Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).

Follow directions - The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.

Explain why you agree or disagree; suggest alternatives and substitute
language for your requested changes.

Describe any assumptions and provide any technical information and/or
data that you used.

If you estimate potential costs or burdens, explain how you arrived at
your estimate in sufficient detail to allow for it to be reproduced.

Provide specific examples to illustrate your concerns, and suggest
alternatives.

Explain your views as clearly as possible, avoiding the use of profanity
or personal threats.

Make sure to submit your comments by the comment period deadline
identified.

D.	How is the preamble organized?

The information presented in this preamble is organized as follows:

I.	  HYPERLINK \l "_Toc244070332"  General Information 

A.	Does this action apply to me? 

B.	Where can I get a copy of this document and other related
information? 

C.	What should I consider as I prepare my comments for EPA? 

  HYPERLINK \l "_Toc244070336"  D.	H   HYPERLINK \l "_Toc244070337"  ow
is the preamble organized?  

  HYPERLINK \l "_Toc244070338"  II.	Overview of Proposed Rule 

III.	Background

A.	CAA and Regulatory Context

B.	State PSD SIPs

IV.	Proposed Action:  Finding of Substantial Inadequacy and SIP Call

A.	Introduction

B.	States with SIP PSD Applicability Provisions that Do Not Appear to
Apply to GHG-emitting Sources

C.	States with SIP PSD Applicability Provisions that Do Appear to Apply
to GHG-emitting Sources

D.	Proposed Finding of SIP Substantial Inadequacy and SIP Call;
Solicitation of Comment

E.	Comment Period

F.	State Actions

G.	EPA Actions on SIP Submittals; Findings of Failure to Submit and
Promulgation of FIPs

H.	Streamlining the State Process for SIP Development and Submittal

I.	Sanctions

J.	Title V

V.	Statutory and Executive Order Reviews

A.	Executive Order 12866 – Regulatory Planning and Review

B.	Paperwork Reduction Act

C.	Regulatory Flexibility Act

D.	Unfunded Mandates Reform

E.	Executive Order 13132 – Federalism

F.	Executive Order 13175 – Consultation and Coordination with Indian
Tribal Governments

G.	Executive Order 13045 – Protection of Children from Environmental
Health Risks and Safety Risks

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

I.	National Technology Transfer and Advancement Act

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

VI.	Statutory Authority

II.	Overview of Proposed Rule

In this rulemaking, along with the companion rulemaking described
elsewhere in this preamble, EPA is taking another in a series of actions
concerning the PSD program for GHG-emitting sources that will begin on
January 2, 2011.  These two rulemakings take steps to assure that in 16
states that do not appear to have authority to issue PSD permits to
GHG-emitting sources at present, either the state or EPA will have the
authority to issue PSD permits by January 2, 2011.  Although for most
states, either the state or EPA is already authorized to issue PSD
permits for GHG-emitting sources as of that date, our preliminary
information shows that these 16 states have EPA-approved PSD programs
that do not appear to include GHG-emitting sources and therefore do not
appear to authorize these states to issue PSD permits to such sources. 
In this rulemaking, EPA proposes to find that these 16 states' SIPs are
substantially inadequate to comply with CAA requirements and,
accordingly, proposes to issue a SIP Call to require a corrective SIP
revision that applies their SIP PSD programs to GHG-emitting sources. 
In a companion rulemaking, EPA proposes a FIP that would give EPA
authority to apply EPA's PSD program to GHG-emitting sources in case
such a state is unable to submit a corrective SIP revision by its
deadline. 

Under the CAA PSD program, stationary sources must obtain a permit prior
to undertaking construction or modification projects that would result
in specified amounts of new or increased emissions of air pollutants
that are subject to regulation under other provisions of the CAA.  CAA
165(a), 169(1).  The permit must, among other things, impose emission
limitations associated with the best available control technology
(BACT).  CAA 165(a)(4).

In recent months, EPA has taken four related actions that, taken
together, trigger PSD applicability for GHG sources on and after January
2, 2011, but limit the scope of PSD.  These actions included, as they
are commonly called, the "Endangerment Finding" and "Cause or Contribute
Finding," which were issued in a single final action, the "Johnson Memo
Reconsideration," the "Light-Duty Vehicle Rule," and the "Tailoring
Rule."  Taken together, these actions established regulatory
requirements for GHGs emitted from new motor vehicles and new motor
vehicle engines, determined that such regulations, when they take effect
on January 2, 2011, will subject GHGs emitted from stationary sources to
PSD requirements, and limited the applicability of PSD requirements to
GHG sources on a phased-in basis. 

We are taking this action due to preliminary research indicating that
the EPA-approved SIPs for 16 states appear to not apply the PSD program
to GHG sources.  In many of these states, the SIP applicability
provisions apply the PSD program to sources of specifically listed air
pollutants and do not include GHGs.  In one state, Connecticut, the SIP
explicitly precludes the application of PSD to GHG-emitting sources.  In
other states, the SIP applicability provisions apply the PSD program
generally to regulated pollutants, and these provisions, by their terms,
cover GHGs; however, these states have other constitutional, state law,
or SIP provisions that may limit their state laws or SIP requirements to
applying only when specifically approved by the appropriate state
authority.  As a result, these constitutional or statutory provisions
may limit the scope of the state PSD applicability provisions to
pollutants identified at a certain point in time as subject to PSD, and
thereby preclude the PSD programs from applying to GHG-emitting sources
because the state has not yet identified GHGs as subject to PSD.  As a
result, absent further action, GHG sources in those states that will be
required to obtain a PSD permit on and after January 2, 2011 will be
unable to obtain that permit and therefore unable to proceed with
planned construction or modification.

In this rulemaking, we are proposing to find that under CAA 110(k)(5),
the SIP for each of these 16 states is substantially inadequate to meet
the CAA PSD requirements, and we are proposing a SIP Call to require
that each affected state submit a corrective SIP revision that applies
the PSD program to GHG sources.  These states are listed in table IV-1,
"States with SIPs that Do Not Appear to Apply PSD to GHG Sources
(Presumptive SIP Call List)."

As for the remaining states with EPA-approved SIP PSD programs, our
preliminary research indicates that their SIP PSD applicability
provisions apply the PSD programs more broadly—for example, many apply
to sources of "regulated NSR pollutants"—and therefore appear to
include GHG-emitting sources.  Moreover, we have not to this point
received information about other provisions in the state constitutional
or other state or SIP law that would have the effect of limiting the
applicability of the PSD provisions to exclude GHG-emitting sources. 
Those remaining states, which include all the states with EPA-approved
PSD programs not listed in table IV-1, are listed in table IV-2, "States
with SIPs that Appear to Apply PSD to GHG Sources (Presumptive Adequacy
List)."  

Even so, we are aware of the possibility that some of those states may
also have other state law provisions that may have the effect of
limiting their PSD SIP requirements to applying only to pollutants
specifically approved by the appropriate state authority, which would
not include GHGs.  In light of this possibility, we are soliciting
comment on whether each of those remaining states' SIPs (see table IV-2)
apply PSD to GHG-emitting sources.  If, for any such state, we receive
information that leads us to conclude that its SIP does not apply PSD to
GHG-emitting sources, we will take final action to issue a finding of
substantial inadequacy and a SIP Call for that state, on the same
schedule as that for the 16 states.  

In a companion action to this rulemaking, we are proposing to
promulgate, in any state that is not in a position to make a timely
submittal of the corrective SIP revision, a FIP that will assure that
sources will be able to obtain the necessary permits, with EPA as the
permitting authority for GHG emissions.  

In view of the need for prompt action to eliminate or significantly
limit any time period during which certain GHG sources are precluded
from constructing or modifying because no entity has the authority to
issue them permits, we intend to finalize this rulemaking action by
December 1, 2010, and we propose in this rulemaking to give states a
deadline of 12 months from the date we finalize to submit their
corrective SIP revision.  However, we are also proposing to authorize
states to accept a shorter deadline, as short as three weeks from the
date we finalize.  If any state is not able to submit a corrective SIP
revision by its deadline, then EPA, by virtue of the authority of the
FIP provisions under CAA 110(c), will immediately make a finding that
the state has failed to submit the required SIP revision and will
immediately promulgate the FIP.  

Some states may already be in the process of developing the legal
authority needed and may be able to submit a SIP revision sooner than
December 2010.  EPA encourages states to take action as expeditiously as
possible and will assist states as much as possible.  Therefore, for
each state for which EPA is proposing a SIP Call, depending on whether
the state submits a SIP revision before EPA finalizes this action or, if
not, depending on which deadline the state receives for the corrective
SIP submittal, it is possible that by the time January 2, 2011, arrives
and certain GHG sources in the state may be required to obtain PSD
permits, a permitting authority will be in place to act on the sources'
permit applications.

We ask that, within the comment period for this action, each of the
states listed in table IV-1 confirm to EPA that its SIP does not apply
the PSD program to GHG-emitting sources.  We also ask that within this
comment period, every other state in the nation with an approved SIP
(see table IV-2) review its SIP and inform EPA if its SIP does not apply
the PSD program to GHG-emitting sources.  Further, we ask that the
states (see table IV-1) for which we are proposing a SIP Call identify
the deadline—between 3 weeks and 12 months from the date of signature
of the final SIP Call—that they would accept for submitting their
corrective SIP revision.  For example, assuming that, as we anticipate,
this rulemaking is signed in final form by December 1, 2010, a state may
specify that it would accept a SIP submittal deadline that falls between
December 22, 2010, and December 1, 2011, inclusive. 

III.	Background

A.	CAA and Regulatory Context

EPA described the relevant background information in the Tailoring Rule.
 Knowledge of this background information is presumed and will be only
briefly summarized here.

1.	SIP PSD Requirements

Under the CAA PSD requirements, a new or existing source that emits or
has the potential to emit "any air pollutant" in the amounts of either
100 or 250 tons per year (tpy), depending on the source category, cannot
construct or modify unless it first obtains a PSD permit that, among
other things, imposes emission limitations that qualify as BACT.  CAA
165(a)(1), 165(a)(4), 169(1).  Longstanding EPA regulations have
interpreted the term "any air pollutant" narrowly so that only emissions
of any "regulated NSR pollutant" trigger PSD.  40 CFR 51.166(j)(1),
52.21(j)(2).  The term "regulated NSR pollutant" is defined to include
the following four classes of air pollutants:

(i)  any pollutant for which a NAAQS has been promulgated;

(ii)  any pollutant subject to an NSPS promulgated under CAA 111;

(iii)  any pollutant subject to a standard promulgated under CAA title
VI; and

(iv)  "any pollutant that otherwise is subject to regulation under the
Act" (excluding HAPs listed under CAA 112).  40 CFR 51.166(b)(49),
52.21(b)(50).

The CAA contemplates that the PSD program be implemented in the first
instance by the states and requires that states include PSD requirements
in their SIPs.  CAA 110(a)(2)(C) requires that –

Each implementation plan * * * shall * * * include a program to provide
for * * * regulation of the modification and construction of any
stationary source within the areas covered by the plan as necessary to
assure that national ambient air quality standards are achieved,
including a permit program as required in part[] C * * * of this
subchapter.

CAA 110(a)(2)(J) requires that –

Each implementation plan * * * shall * * * meet the applicable
requirements of * * * part C of this subchapter (relating to significant
deterioration of air quality and visibility protection).

CAA 161 provides that –

Each applicable implementation plan shall contain emission limitations
and such other measures as may be necessary, as determined under
regulations promulgated under this part [C], to prevent significant
deterioration of air quality for such region * * * designated * * * as
attainment or unclassifiable.

These provisions, read in conjunction with the PSD applicability
provision—which, as noted above, applies, by its terms, to "any air
pollutant," and which EPA has, through regulation, interpreted more
narrowly as any "NSR regulated pollutant"—and read in conjunction with
other provisions, such as the BACT provision under CAA 165(a)(4),
mandate that SIPs include PSD programs that are applicable to, among
other things, any air pollutant that is subject to regulation,
including, as discussed below, GHGs on and after January 2, 2011.

A number of states do not have PSD programs approved into their SIPs. 
In those states, EPA's regulations at 40 CFR 52.21 govern, and either
EPA or the state as EPA's delegatee acts as the permitting authority. 
On the other hand, most states have PSD programs that have been approved
into their SIPs, and these states implement their PSD programs and act
as the permitting authority.  These approved SIPs are discussed in more
detail below.  

2.	Recent EPA Regulatory Action Concerning PSD Requirements for
GHG-emitting Sources

By notice dated December 15, 2009, pursuant to CAA 202(a), EPA issued,
in a single final action, two findings regarding GHGs that are commonly
referred to as the "Endangerment Finding" and the "Cause or Contribute
Finding."  "Endangerment and Cause or Contribute Findings for Greenhouse
Gases Under Section 202(a) of the Clean Air Act," 74 FR 66496.  In the
Endangerment Finding, the Administrator found that six long-lived and
directly emitted greenhouse gases—carbon dioxide (CO2), methane (CH4),
nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs),
and sulfur hexafluoride (SF6)—may reasonably be anticipated to
endanger public health and welfare.  In the Cause or Contribute Finding,
the Administrator "define[d] the air pollutant as the aggregate group of
the same six * * * greenhouse gases," 74 FR 66536, and found that the
combined emissions of this air pollutant from new motor vehicles and new
motor vehicle engines contribute to the GHG air pollution that endangers
public health and welfare.  

By notice dated May 7, 2010, EPA published what is commonly referred to
as the "Light-Duty Vehicle Rule" (LDVR), which for the first time
established federal controls on GHGs emitted from light-duty vehicles. 
"Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate
Average Fuel Economy Standards; Final Rule."  75 FR 25324.  In its
applicability provisions, the LDVR specifies that it "contains standards
and other regulations applicable to the emissions of six greenhouse
gases," including CO2, CH4, N2O, HFCs, PFCs, and SF6.  75 FR 25686 (40
CFR 86.1818-12(a)). 

Shortly before finalizing the LDVR, by notice dated April 2, 2010, EPA
published a notice commonly referred to as the Johnson Memo
Reconsideration, which interpreted the term "subject to regulation," a
term that is one of the regulatory triggers for PSD applicability.  The
Johnson Memo Reconsideration concluded that for GHGs, promulgation of
the LDVR would trigger PSD applicability for GHG-emitting sources on or
after January 2, 2011, which according to EPA is the date upon which the
LDVR takes effect.  

By notice dated June 3, 2010, EPA published what is commonly referred to
as the "Tailoring Rule," which limits the applicability of PSD through a
multi-step phase-in approach to only the highest-emitting GHG-emitting
sources for a specified period of time, and not all GHG-emitting sources
at the 100/250-tpy statutory thresholds.  The Tailoring Rule established
the first two steps of the approach, which take effect on January 2,
2011, and July 1, 2011, respectively.  In the Tailoring Rule, EPA
codified the Johnson Memo Reconsideration interpretation of the term
"subject to regulation" and added a further interpretation of that term
designed to expedite the adoption of the phase-in approach for PSD
permitting for GHGs by the states into their SIPs.  In addition, in the
Tailoring Rule, EPA identified the air pollutant that, if emitted or
potentially emitted by the source in excess of specified thresholds,
would subject the source to PSD requirements, as the aggregate of the
six GHGs, again, CO2, CH4, N2O, HFCs, PFCs, and SF6.  The Tailoring Rule
further provided that for purposes of determining whether the GHGs
emitted or potentially emitted exceeded the specified thresholds, the
amount of the GHGs must be calculated first on a mass emissions basis
and then on a carbon dioxide equivalent (CO2e) basis.  With respect to
the latter, according to the rule, "PSD * * * applicability is based on
the quantity that results when the mass emissions of each of these [six]
gases is multiplied by the Global Warming Potential (GWP) of that gas,
and then summed for all six gases."  75 FR 31518.  In the Tailoring
Rule, we asked states to submit to us letters within 60 days of
publication describing how they intended to incorporate into their SIPs
the limitations on PSD applicability included in the rule's phase-in
approach.

Further information on the Endangerment and Cause or Contribute
Findings, the LDRV, the Johnson Memo Reconsideration, and the Tailoring
Rule is contained in the Tailoring Rule.

3.	SIP Inadequacy and Corrective Action

The CAA provides a mechanism for the correction of flawed SIPs, under
CAA 110(k)(5), which provides:  

(5)  Calls for plan revisions

	Whenever the Administrator finds that the applicable implementation
plan for any area is substantially inadequate to * * * comply with any
requirement of this Act, the Administrator shall require the State to
revise the plan as necessary to correct such inadequacies.  The
Administrator shall notify the State of the inadequacies and may
establish reasonable deadlines (not to exceed 18 months after the date
of such notice) for the submission of such plan revisions.

This provision by its terms authorizes the Administrator to "find[] that
[a SIP] * * * is substantially inadequate to * * * comply with any
requirement of this Act," and, based on that finding, to "require the
State to revise the [SIP] * * * to correct such inadequacies."  This
latter action is commonly referred to as a "SIP Call."  In addition,
this provision provides that EPA must notify the state of the
substantial inadequacy and authorizes EPA to establish a "reasonable
deadline[] (not to exceed 18 months after the date of such notice)" for
the submission of the corrective SIP revision. 

If the state fails to submit the corrective SIP revision by the
deadline, CAA 110(c) authorizes EPA to "find[] that [the] State has
failed to make a required submission."  CAA 110(c)(1)(A).  Once EPA
makes that finding, CAA 110(c)(1) requires EPA to "promulgate a Federal
implementation plan at any time with 2 years after the [finding] * * *
unless the State corrects the deficiency, and [EPA] approves the plan or
plan revision, before [EPA] promulgates such [FIP]."

B.	State PSD SIPs

1.	SIP PSD Applicability Provisions

As noted earlier in this preamble, most states have approved PSD SIPs. 
Most of those SIPs identify the pollutants addressed under their PSD
program as any "regulated NSR pollutant."  This definition covers any
"pollutant subject to regulation" and therefore, by its terms, in effect
is automatically updating and needs no revision in order to cover
pollutants that become subject to regulation under the CAA.  As a
result, these provisions cover GHG emissions when they become subject to
regulation under other provisions of the CAA.  See 40 CFR 52.21(b)(50).

However, EPA has become aware that a minority of approved SIPs fail to
include this broad approach to identifying pollutants subject to PSD and
instead simply list the individual pollutants by name.  These SIPs do
not identify GHGs as among the pollutants addressed under their PSD
program.  As a result, these applicability provisions, by their terms,
do not appear to apply the PSD requirements to sources of GHGs when GHGs
become "subject to regulation" under the CAA on January 2, 2011.  

In addition, the PSD SIP applicability provisions of one state that we
are aware of, Connecticut, explicitly excludes CO2 as an "air
pollutant," so that CO2 is not subject to PSD requirements.   

2.	Other Relevant State Law Provisions

Some states may have other state laws, including other SIP provisions
that bear upon the applicability of their PSD programs to GHG-emitting
sources.

First, some states may have in their SIPs some sort of "general
authority clause" that affirms the state's legal authority to issue, and
enforce compliance with, permits that are consistent with federal
requirements.  If one of the states listed in table IV-1 of this
preamble as having a SIP that does not explicitly apply PSD to GHG
emitters nevertheless has such a "general authority clause," then the
SIP, read as a whole, may be considered to apply PSD to GHG sources.

For an example of the type of "general authority clause" that may have
this effect, we refer to correspondence between the California Bay Area
Air Quality Management District (BAAQMD) and EPA Region IX that is
included in the docket for this rulemaking.  In a letter dated October
28, 2009, the BAAQMD proposed to exercise general authority in order to
issue air permits to sources of PM2.5 even though its air permit
regulations did not contain specific provisions for PM2.5 emissions. 
Under the proposed approach, with which EPA concurred, BAAQMD exercised
general authority under the administrative requirements within its air
permit regulations, which provide that the Air Pollution Control Officer
"may impose any permit condition that he deems reasonably necessary to
insure compliance with federal or California law or District
regulations...."  See Regulation 2-1-403 included in the docket for this
rulemaking.  

Second, some states may have, in their SIPs, statutes, or constitutions,
a provision that precludes "forward adoption," that is, that prevents
the state law from incorporating by reference or otherwise adopting any
requirements not specifically adopted by the state legislature or other
state authority.  In particular, some states may include a SIP PSD
applicability provision that incorporates by reference (IBR) our federal
PSD rule at 40 CFR 52.21—including the definition of "regulated NSR
pollutant"—but that further provides that this IBR is not "rolling"
and therefore is limited to only pollutants identified as regulated NSR
pollutants as of the date the state adopted the PSD provision.  Any of
these provisions could limit the SIP PSD applicability rule to only the
pollutants that were regulated as of the time the state adopted the PSD
applicability rule, which means the SIP PSD program would not cover
GHG-emitting sources until the state took specific action to that
effect.   

IV.	Proposed Action:  Finding of Substantial Inadequacy and SIP Call

A.	Introduction

Beginning on January 2, 2011, certain stationary sources that construct
or undertake modifications will become subject to the CAA requirement to
obtain a PSD permit for their GHG emissions.  This is because of the
following CAA statutory and EPA regulatory requirements:  Under CAA
165(a) and 169(1), as interpreted through longstanding EPA regulations,
PSD applies to sources that emit specified amounts of "regulated NSR
pollutants," which include specified air pollutants as well any other
"[air] pollutant" that is "subject to regulation."  40 CFR 51.166(j)(1),
(b)(49)(iv).  By notice dated May 7, 2010, EPA promulgated the
Light-Duty Vehicle Rule (LDVR), which establishes requirements for GHGs.
 75 FR 25324.  By the terms of the LDVR, these emission limits take
effect on January 2, 2011.  The LDVR identified the GHGs to which it
applies as a single air pollutant that consists of CO2, CH4, N2O, HFCs,
PFCs, and SF6.  The LDVR followed EPA's Endangerment and Cause or
Contribute Findings, issued by notice dated December 15, 2009, by which
EPA found that GHGs—defined to include the same six
constitutents—may reasonably be anticipated to endanger public health
and welfare.  By notice dated April 2, 2010, EPA promulgated the Johnson
Memo Reconsideration.  75 FR 17004.  In this action, EPA made clear that
the regulation of GHGs by the LDVR will trigger the applicability of PSD
requirements to GHG-emitting stationary sources as of January 2, 2011,
because GHGs will become "subject to regulation" through the LDVR.  By
notice dated June 3, 2010, EPA promulgated the Tailoring Rule, which
narrows PSD applicability to specified GHG-emitting sources on a
specified phase-in schedule and makes clear that GHGs—defined as the
same single pollutant, with six constituent gases, as described in the
LDVR—are the "[air] pollutant" to which PSD requirements apply.  75 FR
31514.  As a result, beginning on January 2, 2011, under the PSD
provisions, the GHG-emitting stationary sources that become subject to
PSD—which are those sources identified in the first step of the
Tailoring Rule, followed on July 1, 2011, by the sources identified in
the second step of the Tailoring Rule—will not be able to construct or
undertake modifications until they receive a PSD permit from the
permitting authority.

A number of states do not have an approved PSD SIP; as a result, in
these states the applicable regulatory authority is EPA's regulations,
found in 40 CFR 52.21, which constitute a FIP.  For sources in these
states, either the EPA Regional Office or the state acting as EPA's
delegatee is the permitting authority.  Because EPA's regulations apply
directly, sources in these states that emit GHGs will become subject to
PSD for their GHG emissions, to the extent provided under the Tailoring
Rule, on January 2, 2011.  These sources will be able, on and after
January 2, 2011, to apply for and receive in due course their PSD
permits either from EPA directly or from those state permitting
authorities acting on EPA's behalf.

All of the other states administer their PSD program through an approved
SIP and, as a result, they or their local entities are the PSD
permitting authority.  This rulemaking concerns whether those approved
SIP PSD programs include GHG-emitting sources and, for those that do
not, the steps that EPA will take to assure that a PSD permit program
that includes GHGs is in place.   

B.	States with SIP PSD Applicability Provisions that Do Not Appear to
Apply to GHG-emitting Sources

Our research indicates that for 16 of the states with approved PSD SIPs,
the PSD programs of their SIPs do not appear to apply to GHG-emitting
sources.  These states are listed in table IV-1, "States with SIPs that
Do Not Appear to Apply PSD to GHG Sources (Presumptive SIP Call List)." 
In a number of these SIPs, the PSD applicability provisions do not
mirror EPA's regulatory provisions by applying PSD requirements to
sources of any air pollutant "subject to regulation"; instead, the PSD
applicability provisions specifically list the air pollutants to which
the PSD program applies and do not include GHGs on that list.  As a
result, the PSD applicability provisions do not, by their terms, cover
GHG-emitting sources.  

In addition, Connecticut's SIP appears by its terms to preclude the
application of PSD to GHG-emitting sources.  

Further, some of these states have SIP PSD provisions that by their
terms apply PSD to regulated NSR pollutants, or have a substantially
similarly phrased requirement, but also have state constitutional or
other statutory or SIP provisions that appear to have the effect of
limiting PSD applicability to air pollutants identified on a certain
date.  Therefore, state law, read as whole, would not appear to apply
PSD requirements to GHGs until the appropriate state authority takes
action to specifically subject PSD to GHGs, and the state has not yet
done so.  

We conclude, based on our preliminary research, that the states with
SIPs or state law with these provisions do not appear to apply the PSD
program to GHG-emitting sources, and we are including them in table
IV-1.  We recognize that stakeholders may have other interpretations of
these provisions, and we solicit comments from stakeholders on their
interpretations.  In addition, some of these SIPs may include what we
will refer to as a "general authority provision," which is a provision
for the state to issue PSD permits that comply with EPA requirements, as
described earlier in this preamble.  If so, it is possible that these
provisions could be interpreted to authorize the state in some cases to
issue to GHG sources PSD permits that incorporate EPA's regulatory
requirements, as found in 40 CFR 51.166.  As a result, we consider table
IV-1 to be a presumptive SIP Call list.Table IV-1.  States with SIPs
that Do Not Appear to Apply PSD to GHG Sources (Presumptive SIP Call
List)

 

State (or Area)	EPA Region

Alaska	X

Arizona: Pinal County	IX

Arkansas	VI

California: Sacramento Metropolitan AQMD	IX

Connecticut	I

Florida	IV

Idaho	X

Louisiana	VI

Maine	I

Montana	VIII

Nevada: Clark County	IX

New Hampshire	I

Oklahoma	VI

Oregon	X

Texas	VI

Utah	VIII



	

C.	States with SIP PSD Applicability Provisions that Do Appear to Apply
to GHG-emitting Sources

On the other hand, as noted above, for most of the states with approved
SIPs, those SIPs generally apply PSD to sources of any "regulated NSR
pollutant," and we have not received information indicating that the
state law includes other provisions that may have the effect of
precluding PSD from applying to GHG-emitting sources.  As a result, EPA
is including a list of states with presumptively adequate SIPs in table
IV-2, "States with SIPs that Appear to Apply PSD to GHG Sources
(Presumptive Adequacy List)."

Table IV-2.  States with SIPs that Appear to Apply PSD to GHG Sources
(Presumptive Adequacy List)

 

State (or Area)	EPA Region

Alabama: Jefferson County; Huntsville; Rest of State	IV

Arizona: Rest of State (Excludes Pinal County and Indian Country)	VIII

California: Monterey Bay Unified APCD; North Coast Unified AQMD;
Northern Sonoma County APCD	IX

Colorado	VIII

Delaware	III

Georgia	IV

Indiana	V

Iowa	VII

Kansas	VII

Kentucky: Jefferson County; Rest of State 	IV

Maryland	III

Michigan	V

Mississippi	IV

Missouri	VII

Nebraska: Lincoln Lancaster; Omaha; Rest of State	VII

New Mexico: Albuquerque; Rest of State	VI

North Carolina: Forsythe County; Mecklenburg; Western NC; Rest of State
IV

North Dakota	VIII

Ohio	V

Pennsylvania: All except Allegheny County	III

Rhode Island	I

South Carolina	IV

South Dakota	VIII

Tennessee: Chattanooga; Nashville; Knoxville; Memphis; Rest of State	IV

Vermont	I

Virginia	III

West Virginia	III

Wisconsin	V

Wyoming	VIII

  

We have developed these two lists of states—one listing states whose
PSD program appears to not apply to GHG-emitting sources and one listing
states whose program appears to cover such sources—based on our own
preliminary research, consultation with states, and review of the 60-day
letters, described earlier in this preamble, submitted thus far by
states in response to the Tailoring Rule.  As explained elsewhere in
this preamble, we ask that each state with an approved SIP submit
information during the comment period for this rulemaking pertinent to
whether its SIP—including the PSD applicability provisions and any
other relevant provisions—covers GHG-emitting sources. 

D.	Proposed Finding of SIP Substantial Inadequacy and SIP Call;
Solicitation of Comment

For each of the states listed in table IV-1 of this preamble, we propose
to issue a finding that the SIP is "substantially inadequate … to …
comply with [the PSD] requirement[s]" and to "require the State to
revise the plan as necessary to correct such inadequacies," i.e., to
issue a SIP Call.  CAA 110(k)(5).  For each of these states, the SIP
appears to not apply the PSD program to GHG-emitting sources.  

As discussed elsewhere in this preamble, we invite comment on this
proposal.  For any state listed in table IV-1, if we do not receive any
further information from the state or other commenters, we expect to
finalize our proposed finding and SIP Call.  Also for any state listed
in table IV-1, if we do receive additional information that our
interpretation of these provisions is incorrect or that the SIP includes
a general authority provision so that, read as a whole, the SIP applies
the PSD program to GHG sources, we will not finalize our proposed
finding and SIP Call.

	Our basis for the proposed finding—and the proposed SIP Call that is
based on this finding—is that CAA 110(k)(5) provides that EPA may make
the finding when the SIP is "substantially inadequate … to … comply
with any requirement of [the CAA]," and this includes the PSD
requirements.  As discussed earlier in this preamble, SIPs are required
to include PSD programs that apply to sources that emit pollutants
subject to regulation; as a result, the SIPs at issue merit a finding of
substantial inadequacy because they fail to apply the PSD program to
GHG-emitting sources on and after January 2, 2011.

For all other states with approved PSD SIPs—which are the ones listed
in table IV-2—we solicit comment on whether their SIPs, read as a
whole, apply the PSD program to GHG-emitting sources.  If, on the basis
of additional information, we conclude that their PSD programs do not
apply to GHG-emitting sources, we will issue a final finding of
substantial inadequacy and SIP Call on the same schedule as that for any
of the states for which we are issuing a proposed finding and SIP Call.

We recognize that PSD requirements will not apply to GHG-emitting
sources until January 2, 2011, but that for any state for which we
finalize a finding of substantial inadequacy and a SIP Call, our plan is
to do so approximately one month in advance of that date.  Even so, our
timing is justified.  SIPs must include, at least a month prior to
January 2, 2011, a provision applying PSD requirements to GHG-emitting
sources as of January 2, 2011, in order to give sources notice that the
requirement applies and that the state will act as the permitting
authority.  We recognize that as a practical matter, some states may
wish that we impose a FIP effective as of January 2, 2011, in order to
avoid any period of time when the GHG-emitting sources identified in the
Tailoring Rule as subject to PSD are unable to obtain a permit due to
lack of a permitting authority.  We cannot impose a FIP until we have
first finalized the SIP Call and given the state a reasonable period of
time to make the corrective SIP submission.  All this necessarily
entails, for those states, finalizing the SIP Call prior to January 2,
2011. 

After the close of the comment period for this proposed action, we will
review all comments.  If we determine that the PSD SIP for any state
either by its terms does not apply to sources of GHGs or has conflicting
provisions that create ambiguity as to whether it applies to sources of
GHGs (such as an applicability provision that explicitly excludes GHG
sources, coupled with a general-authority provision that could be read
to authorize permitting of GHG sources), then, for that state, we will
finalize the finding that the SIP is "substantially inadequate … to
… comply with [the PSD] requirement[s]."  At the same time, we will
finalize a SIP Call for that state.  We will make the finding of
substantial inadequacy, notify the state that we have made the finding,
and issue the SIP Call in a final action that we intend to sign by
December 1, 2010, and submit for publication in the Federal Register as
soon as possible thereafter.  We will notify the state of the finding of
substantial inadequacy by letter and by posting the signed action on our
Web Site.  In view of the urgency of the task, which is to ensure that a
PSD permitting authority for affected GHG sources is in place by January
2, 2011, we propose to give the final SIP Call an effective date of its
publication date.

E.	Comment Period 

In order to deepen our understanding of what provisions are in the
relevant PSD SIPs, and how they are to be interpreted, as well as to
ensure that we have a comprehensive picture of all the SIPs in this
regard, we ask each state to give us the following information by the
close of the comment period on this rule:

1.	States with SIP PSD Applicability Provisions that Do Not Appear to
Include GHGs 

We ask that each of the states listed in table IV-1 of this
preamble—for which we have information that their SIP PSD
applicability provisions do not include GHGs, and for which we propose a
finding of substantial inadequacy and a SIP Call—provide the following
information by the end of the comment period for this action:

(a)	Confirm, with citations and a copy of the relevant language, that
the SIP PSD applicability provisions do not explicitly include GHG
sources;

(b)	Identify and provide a copy of any provision that specifically
precludes PSD applicability for GHG sources;

(c)  Identify and provide a copy of any provision of state constitution
or other law, including the SIP, that may be read to limit the
applicability of the PSD program to pollutants identified at a certain
point in time, and therefore not to GHGs. 

(d)	Indicate, with citations and a copy of the relevant language, if
any, whether the SIP includes general authority for the state to issue
PSD permits that meet EPA requirements;

(e)  Indicate, with citations and a copy of the relevant language, any
other provisions of the SIP or state law that may bear on the
applicability of the PSD program to GHG-emitting sources.

(f)	Indicate the state's interpretation as to whether the SIP, read as a
whole, does or does not apply the PSD program to GHG sources or
authorize the state to issue PSD permits for GHG sources that meet EPA
requirements.  This statement should be made by the commissioner or
general counsel of the state environmental agency, or by the counterpart
at the local or tribal level, or by the state Attorney General.

(g)	If the SIP, read as a whole, does not apply the PSD program to GHG
sources or authorize the issuance of permits to GHG sources, indicate
whether the state plans to develop adequate authority to apply the PSD
program to GHG sources and to submit it to EPA as a SIP revision by
December 1, 2010, which is shortly before the date on which, as
discussed below, EPA intends to finalize its finding of inadequacy and
finalize the SIP Call.

As discussed later in this preamble, we also ask these states to inform
us, by the end of the comment period, of the period of time (as bounded
in this preamble) that they would accept as the deadline for submittal
of their SIP revisions in response to a SIP Call.

2.	All Other States with Approved SIPs

We request that each other state—besides the 16 states for which we
propose a SIP Call—with an approved PSD SIP (see table IV-2) review
its PSD provisions to confirm that they apply the PSD program to GHG
sources.  We request that each of these states inform us if it has a SIP
PSD applicability provision that does not by its terms apply to
pollutants "subject to regulation" or similar language, or otherwise
apply to GHG sources.  In addition, we request that each of these states
inform us if it has another state law provision that may have the effect
of limiting PSD applicability to air pollutants covered by EPA's PSD
program as of a certain date, and therefore does not include GHGs.  For
any state whose PSD program, for any of these reasons, may not apply to
GHG-emitting sources, we request the same information described in
section IV.E.1 of this preamble as soon as possible during the comment
period.  Once we receive this information, if we believe it shows that
the state's SIP PSD program does not apply to GHG sources, we will
finalize a finding of substantial inadequacy and a SIP Call on the same
schedule as any of the states for which we are proposing a finding and
SIP Call.  

F.	State Actions

1.	State Submission of SIP Revision Prior to Final SIP Call

If a state for whose SIP we propose a finding of substantial inadequacy
submits a SIP revision by December 1, 2010 that purports to correct that
inadequacy, we will not finalize the finding or SIP Call for that state.
 Rather, we will take action on their SIP submission promptly, as
discussed below.  

2.	State Response to SIP Call

a.	Timing of State Submittal

Under CAA 110(k)(5), in notifying the state of the finding of
substantial inadequacy and issuing the SIP Call, we "may establish
reasonable deadlines (not to exceed 18 months after the date of such
notice) for the submission of such plan revisions."  We propose to allow
the state 12 months from the date of the notice, which will be the date
on which we sign the final action, to submit the SIP revision, unless,
during the comment period, the state advises that it would not object to
a shorter period—as short as 3 weeks from the date of signature of the
final rule—in which case we will establish the shorter period as the
deadline.  Assuming that the Administrator signs the final SIP Call on
December 1, 2010, the earliest deadline would be December 22, 2010.  The
purpose of establishing the shorter period as the deadline—assuming
that state advises us that it does not object to that shorter
period—is to accommodate states that wish to ensure that a FIP is
available as, in effect, a backstop to ensure that there is no gap in
PSD permitting.  If the state does not advise us that it does not object
to a shorter deadline, then the 12-month deadline will apply.

It must be emphasized that for any state that receives a deadline after
January 2, 2011, the affected GHG-emitting sources in that state—which
are those larger GHG-emitters identified in the Tailoring Rule as
subject to PSD through the phase-in approach—will be unable to receive
a federally approved permit authorizing construction or modification,
and therefore will not lawfully be able to construct or modify—from
January 2, 2011, until the date that EPA either approves the SIP
submittal or promulgates a FIP.

This 3-week-to-12-month time period, although expedited, meets the CAA
110(k)(5) requirement as a "reasonable deadline[]."  The term
"reasonable deadline[]," as it appears in that provision, is not
defined.  We interpret it to mean a time period that is sensible or
logical, based on all the facts and circumstances.  Those facts and
circumstances include (i) the state SIP development and submission
process, (ii) the imperative to minimize the period when sources will be
subject to PSD but not have available a PSD permitting authority to act
on their permit application, and therefore will be unable to construct
or modify; and (iii) the preferences of the state.  The following
elaborates on those three facts and circumstances.

First, although the 12-month period is consistent with the time period
required for SIP revisions in at least one previous SIP call that EPA
issued, the NOx SIP Call, we recognize that a period shorter than 12
months is expedited in light of the time involved in most state SIP
development and submission processes.  In particular, we recognize that
some states may need to undertake full-blown rulemaking actions, which
may typically be time-consuming, and we acknowledge that some states may
need to change their statutory provisions, which may typically be even
more time-consuming.  Even so, we understand that at least some states
have emergency processes that may be used to significantly expedite
action.  Although this is a matter of state process, we are prepared, as
described elsewhere in this preamble, to work with the states to develop
expedited methods for developing, processing, and submitting SIP
revisions.

Second, the need to minimize the period when sources will be unable to
construct or modify due to the lack of a permitting authority to act on
their permit applications is an essential consideration.  A shorter
period for SIP submittal means that either the state, through the SIP
revision that it submits on an expedited basis in light of this tight
schedule, or EPA, through a FIP, will become the permitting authority
shortly and will then be able to act on permit applications and issue
permits that allow new construction and modification of existing plants.
 The purposes of the PSD provisions include both the protection of the
environment and the promotion of economic development, see, e.g., CAA
160(3)-(4), and the D.C. Circuit has held that the terms of the PSD
provisions should be interpreted with these goals in mind.  New York v.
EPA, 413 F.3d 3, 23(D.C. Cir.), rehearing en banc den., 431 F.3d 801
(2005).  Accordingly, determining a "reasonable deadline[]" for the
submittal of a PSD SIP revision should account for the need to promote
economic development by assuring the availability of a permitting
authority to process permit applications.

Finally, the preference of the state is important because the deadline
for submittal of the corrective SIP revision in response to a SIP Call
acts as a burden on the state.  If the state does not object to an
earlier deadline under which it must operate—which, in a sense, is
contrary to the state's self-interest because an earlier deadline
typically increases burdens—then that is an indication of the
reasonableness of the deadline. 

We suggest the following model language that a state wishing to indicate
that it does not object to a deadline shorter than 12 months could
consider using in its response to our request for comments.  Of course,
the state is not obligated to use this specific language, and we present
it solely for the convenience of the states:  

	U.S. EPA has proposed a finding of substantial inadequacy and SIP Call
under Clean Air Act section 110(k)(5) concerning the state's SIP PSD
applicability provisions.  Further, U.S. EPA has proposed a deadline for
the state's submittal of a corrective SIP revision.  U.S. EPA has
requested the state's comments on the proposed deadline.  In light of
EPA's perception of the importance of having in place as soon as
possible a PSD permitting authority for any GHG-emitting sources that
may be subject to PSD requirements, the state does not object to U.S.
EPA's establishment of a deadline of [identify the deadline].  

Substance of State Submittal

(i)  Addition of GHGs to List of Pollutants Subject to PSD

We propose to make a finding of substantial inadequacy and issue a SIP
Call for each state whose SIP fails to apply the PSD program to
GHG-emitting sources.  Accordingly, for the state to correct its SIP,
the state must submit a SIP revision that applies PSD to GHG sources. 
For those states whose SIP applies PSD to listed air pollutants, the
state may accomplish this correction in at least two different ways. 
First, the state may revise its SIP so that instead of applying PSD to
sources of individually listed pollutants, the SIP applies PSD to
sources that emit any "regulated NSR pollutant."  We recommend that
states follow this approach.  It is consistent with our 2002 "NSR
Reform" rule.  "Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR); Final Rule and Proposed Rule," 67
FR 80186, 80240 (December 31, 2001).  In addition, it would resolve any
issues about whether the state has authority to issue permits for
sources of PM2.5 emissions, as well as permits for sources of pollutants
that EPA may subject to regulation for the first time in the future. 
Secondly, and as an alternative, the state may retain its approach of
applying PSD to sources of individually listed pollutants but submit a
SIP revision that includes GHGs on that list of pollutants.  If a state
chooses this second approach, we will approve the SIP revision as SIP
strengthening.

(ii)  Definition and Calculation of Amount of GHGs

In adding GHGs to the list of pollutants subject to PSD applicability,
the state must define GHGs as a single pollutant that is the aggregate
of the group of six gases:  CO2, CH4, N2O, HFCs, PFCs, and SF6.  As EPA
stated in the Tailoring Rule, "[t]he final LDVR for GHGs specifies, in
the rule's applicability provisions, the air pollutant subject to
control as the aggregate group of the six GHGs * * * .  Because it is
this pollutant that is regulated under the LDVR, it is this pollutant to
which PSD * * * appli[es]."  75 FR 31528. 

Although we propose to require that the state define GHGs as described
immediately above, we solicit comment on whether the state may adopt a
different definition that is at least as stringent, and, if so, what
such a definition might be.  We caution that a definition that includes
more gases than the six identified above could prove to be less
stringent in certain ways because it could allow greater opportunities
for a source of different gases to net out of PSD.

(iii)  Thresholds

Once a state applies the PSD program to GHG-emitting sources, the state
must determine the threshold for emissions from those sources that will
trigger PSD.  In the Tailoring Rule, EPA promulgated a determination
that the CAA thresholds of 100 or 250 tpy (depending on the source
category) would not apply as of January 2, 2011, or for a period of
years thereafter, in light of, in part, administrative concerns. 
Instead, EPA promulgated a phase-in approach that limits PSD
applicability to only the largest GHG emitting sources for a period of
time.  

The state may adopt the Tailoring Rule phase-in approach into its SIP or
it may adopt lower thresholds—as low as the 100/250 tpy statutory
thresholds—but if it adopts lower thresholds, it must show that it has
"adequate personnel [and] funding * * * to carry out," that is,
administer and implement, the PSD program with those lower thresholds,
in accordance with CAA 110(a)(2)(E)(i).

In the Tailoring Rule, EPA adopted a CO2e metric and use of short tons
(as opposed to metric tons) for calculating GHG emissions in order to
implement the higher thresholds.  75 FR 31530, 31532.  As noted above, a
state retains the authority to adopt lower thresholds than in the
Tailoring Rule.  As a result, the states are not obligated to adopt the
CO2e metric or use of short tons; however, the state must assure that
its approach is at least as stringent as the thresholds in the Tailoring
Rule.

(iv)  State Adoption of "Regulated NSR Pollutants"

Beyond this, we encourage—but do not propose to require—the states
for which we propose a SIP Call to submit a SIP revision to adopt the
PSD applicability provision found in EPA regulations—which is that PSD
applies to "regulated NSR pollutant[s]," including any air pollutant
"subject to regulation"—instead of simply adding GHGs to the SIP's
list of pollutants subject to PSD.

There are many advantages for a state to revise its SIP PSD
applicability provisions in the manner that we encourage.  First, doing
so would more readily incorporate, for state law purposes, the phase-in
approach for PSD applicability to GHG sources that EPA has developed in
the Tailoring Rule and expects to develop further through additional
rulemaking.  As explained in the Tailoring Rule, incorporating this
phase-in approach for state law purposes—including Steps 1 and 2 of
the phase-in as promulgated in the Tailoring Rule and additional steps
of the phase-in that EPA may promulgate in the future—can be most
readily accomplished through state interpretation of the "subject to
regulation" prong of the definition of "regulated NSR pollutant."  If,
instead of adopting into its SIP the "regulated NSR pollutant" trigger
for PSD applicability, the state simply adds GHGs to its list of
pollutants subject to PSD, then the SIP will not include the term
"subject to regulation" and therefore may not include any vehicle or
"hook" for the state to adopt by interpretation the current and any
future steps of the phase-in approach.  As a result, the state may have
to adopt and submit for EPA approval additional SIP revisions to
incorporate the current and future steps of the phase-in approach.

There are other advantages to a state that adopts EPA's definition of
"regulated NSR pollutant."  The SIP would apply PSD to sources emitting
PM2.5, thereby resolving as well the problem that some SIPs have of
failing to cover PM2.5 for PSD purposes.  That is, many of the states
for which we propose a SIP Call due to their SIPs' failure to apply PSD
to sources that emit GHGs also may fail to apply PSD to sources that
emit PM2.5.  To this point in time, this failure has not been a problem
because we have allowed the state to issue PSD permits for sources of
PM2.5 emissions through what is commonly called EPA's "1997 PM10
surrogate policy."  Under the 1997 PM10 surrogate policy, sources and
permitting authorities satisfy the CAA requirements for PM2.5 in PSD
permits by applying the PM10 requirements as a surrogate for PM2.5. 
Each permit that relies on our PM10 surrogate policy is subject to
review as to the adequacy of the presumption that the PM2.5 requirements
are satisfied.  However, we note that EPA has issued a notice of
proposed rulemaking to end the prospective use of the 1997 PM10
surrogate policy by the end of 2010 (75 FR 6827, February 11, 2010).  We
are not at this time taking action with respect to these SIPs on account
of PM2.5, but we encourage states to submit SIP revisions that apply PSD
to sources of PM2.5.

In addition, the SIP would, in effect, automatically update the state
PSD program to apply PSD to any newly regulated pollutants and thereby
avoid recurrence of the present problem of a gap in the PSD program
coverage for newly regulated pollutants.  Finally, state adoption of
EPA's definition of "regulated NSR pollutant" would allow the SIP to
mirror EPA regulations and the SIPs of most states, which may promote
consistency and ease administration.

Notwithstanding the advantages to a state of revising its SIP to apply
PSD to "regulated NSR pollutants," we do not, at this time, propose a
finding that the SIP is substantially inadequate to comply with a CAA
requirement or propose to issue a SIP call that would require a SIP
revision that applies PSD to "regulated NSR pollutants."  Instead, as
noted above, our proposed finding and SIP call are limited to the
failure to apply PSD to GHG-emitting sources, and the SIP revision may
simply include GHGs on the state's list of pollutants subject to PSD. 
We do not propose to require the "regulated NSR pollutant" approach
because that approach is not necessary to correct the substantial
inadequacy—which is the failure of the PSD SIP to cover GHG
sources—for which we propose to issue a SIP Call.  Rather, that
substantial inadequacy may be corrected more narrowly by listing GHGs.

3.	General Authority Provision

As noted earlier in this preamble, some SIPs that apply PSD to sources
of specified pollutants, not including GHGs, may also include a general
authority provision that provides general authority to issue PSD permits
that meet EPA requirements.  For states that include such general
authority, it may be possible to read their SIPs as a whole to authorize
the issuance of PSD permits to GHG sources.  In that case, EPA would not
finalize a finding of substantial inadequacy or a SIP Call for that
state.  

Even so, EPA encourages states with these SIP provisions to submit a SIP
revision that applies PSD to GHG-emitting sources.  Such a SIP revision
would add clarity to the SIP and, in general, carry the benefits
described earlier in this preamble.

G.	EPA Actions on SIP Submittals; Findings of Failure to Submit and
Promulgation of FIPs

1.	Actions on SIP Submittals

As noted above, for any state for which EPA proposes a finding of
substantial inadequacy and SIP Call but that submits a SIP revision
before December 1, 2010, EPA will not issue a final finding of
substantial inadequacy or a SIP Call.  Instead, EPA will take action on
the SIP submittal as quickly as possible.

By the same token, for any state for which EPA has issued a final
finding of substantial inadequacy and a SIP Call, if the state submits
the SIP revision within the submittal deadline, then EPA will not issue
a finding of failure to submit or promulgate a FIP.  Instead, EPA will
take action on the SIP submittal as quickly as possible. 

We fully recognize—and we encourage the states to keep firmly in
mind—that once the January 2, 2011, date for PSD applicability for
certain GHG sources arrives, until we approve the SIP revision, the
affected sources will not be able to receive a federally approved PSD
permit authorizing construction or modification.  In light of this
potential for burden on the affected sources, we intend to act on any
SIP submittals that we receive as promptly as possible.  

In light of the need to act promptly on SIP submittals, we are prepared
to expedite our action by parallel-processing the SIP submittal, upon
request of the state.  Under this approach, the state sends us the draft
of the SIP revision that it expects to issue for public comment at the
state level, in accordance with CAA 110(a)(2), and we will publish a
proposed approval of that draft SIP revision.  In addition, at the same
time the state solicits such public comment at the state level, we will
solicit public comment at the federal level.  If, subsequently, the SIP
revision that the state adopts and submits to EPA is substantially
similar to the draft on which EPA solicited comment, then EPA will
proceed to take final action on the SIP submittal and will not re-notice
it for public comment.  This process will significantly shorten the time
EPA needs to act on the SIP revision. 

2.	Findings of Failure to Submit and Promulgation of FIPs

If the state does not meet its SIP submittal deadline, we will
immediately issue a finding of failure to submit a required SIP
submission under CAA 110(c)(1)(A) and immediately thereafter issue a
FIP.  This timing for FIP promulgation is authorized under CAA
110(c)(1), which authorizes us to promulgate a FIP "at any time within 2
years after" finding a failure to submit a required SIP submission.  We
discuss our approach to the FIP in the companion notice to this
rulemaking concerning FIPs for failure to submit the required PSD SIP
revision.

3.	Rescission of the FIP

After we have promulgated a FIP, it must remain in place until the state
submits a SIP revision and we approve that SIP revision.  CAA 110(c)(1).
 Under the present circumstances, we will act on a SIP revision to apply
the PSD program to GHG sources as quickly as possible and, upon request
of the state, will parallel-process the SIP submittal in the manner
described earlier in this preamble.  If we approve such a SIP revision,
we will, at the same time, rescind the FIP.  We discuss this approach in
the companion notice to this rulemaking concerning FIPs for failure to
submit the required PSD SIP revision.

H.	Streamlining the State Process for SIP Development and Submittal

As stated earlier in this preamble, we recognize that the deadline we
are giving states to submit their SIP revisions is expeditious.  We are
prepared to work with the states to develop methods to streamline the
state administrative process, although we recognize that the states
remain fully in charge of their own state processes.  We solicit
recommendations during the comment period for ways to streamline the
state process for adopting and submitting these SIPs, and to streamline
or simplify what is required for the SIP submittal.

For example, we may streamline the process as it concerns public hearing
requirements.  Many states require that the underlying state regulation
that the state intends to develop into the SIP submittal undergo a
public hearing.  In addition, the CAA requires that the state provide a
public hearing on the proposed SIP submittal, under CAA 110(a)(2).  EPA
will accept the hearing that the state holds on the underlying
regulation as meeting the requirement for the hearing on the SIP
submittal, as long as the state provides adequate public notice of the
hearing, and EPA will not require a separate SIP hearing. 

I.	Sanctions

Under CAA 179(a)(3)(A), if EPA finds that a state failed to submit a PSD
SIP revision as required under a SIP Call, then a mandatory sanctions
clock begins to run, so that if the state does not submit the required
SIP revision within 18 months, EPA must impose one of two sanctions
identified under CAA 179; if the state does not submit the required SIP
revision within another 6 months, EPA must impose the second of the
sanctions.  However, because each sanction applies only to nonattainment
areas, it has been a longstanding EPA position that a finding that a
state has failed to submit a required SIP revision for a PSD area will
not trigger mandatory sanctions.

The two sanctions are described in CAA 179(b) and include: (i) "highway
sanctions," which are "a prohibition, applicable to a nonattainment
area, on the approval" of certain highway construction projects or
certain federal grants for highway construction, CAA 179(b)(1); and (ii)
"[i]n applying the emission offset requirements of [CAA 173] to new or
modified sources or emissions units for which a permit is required under
this part, the ratio of emissions reductions to increased emissions
shall be at least 2 to 1."  CAA 179(b)(2).

Each of these sanctions applies, by its terms, to nonattainment areas. 
That is, as just quoted, CAA 179(b)(1) limits the application of the
highway sanctions "to a nonattainment area," and the offsets sanctions
under CAA 173(c) apply only to nonattainment areas.  See, e.g., CAA
173(c)(1) (referring to "any offset requirement under this part [D],"
which is entitled, "Plan Requirements for Nonattainment Areas");
182(b)(5) (offset requirement for ozone moderate areas); 182(c)(10)
(offset requirement for ozone serious areas); 182(d)(2) (offset
requirement for ozone severe areas); 182(e)(1) (offset requirement for
ozone extreme areas).  Neither of the mandatory sanctions provided under
CAA 179(b) applies to attainment/unclassifiable areas.

As a result, a finding that a state has failed to submit a required SIP
revision will not trigger mandatory sanctions.

J.  Title V 

We note that a number of states may have a similar problem with their
approved title V operating permit programs, (i.e., that their title V
programs do not apply to GHG-emitting sources).  We intend to address
this issue through separate rulemaking.

V.	Statutory and Executive Order Reviews

A.	Executive Order 12866 - Regulatory Planning and Review

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

B.	Paperwork Reduction Act

This action does not impose any new information collection burden. 
Although this action asks states to provide information during the
comment period, the information requested, which concerns whether the
states have authority to regulate GHGs under their SIP PSD provisions,
is substantially similar to the information already requested of the
states in the Tailoring Rule.  The OMB has previously approved the
information collection requirements contained in the existing
regulations for PSD (see, e.g., 40 CFR 52.21) and title V (see 40 CFR
parts 70 and 71) under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. and has assigned OMB control number 2060-0003 and
OMB control number 2060-0336 respectively.  The OMB control numbers for
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C.	Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.  Small entities include small businesses, small organizations,
and small governmental jurisdictions.

For purposes of assessing the impacts of this notice on small entities,
small entity is defined as: (1) a small business that is a small
industrial entity as defined in the U.S. Small Business Administration
(SBA) size standards (see 13 CFR 121.201); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district, or special district with a population of less than 50,000; or
(3) a small organization that is any not-for-profit enterprise that is
independently owned and operated and is not dominant in its field.

This proposed rule will affect states and will not, in and of itself,
directly affect sources.  In addition, although this rule could lead to
federal permitting requirements for certain sources, those sources are
large emitters of GHGs and tend to be large sources.  After considering
the economic impacts of this proposed rule on small entities, I certify
that this action will not have a significant economic impact on a
substantial number of small entities.  

D.	Unfunded Mandates Reform Act

This rule does not contain a federal mandate that may result in
expenditures of $100 million or more for state, local, and tribal
governments, in the aggregate, or the private sector in any one year. 
The action may impose a duty on certain state, local or tribal
governments to meet their existing obligation for PSD SIP submittal, but
with lesser expenditures.  Thus, this rule is not subject to the
requirements of sections 202 or 205 of UMRA.

This rule is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. 

E.	Executive Order 13132 - Federalism

This action does not have federalism implications.  It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.  This action merely prescribes EPA's
action for states that do not meet their existing obligation for PSD SIP
submittal. 

In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and state and local governments,
EPA specifically solicits comment on this proposed rule from state and
local officials.

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

This action does not have tribal implications, as specified in Executive
Order 13175 (65 FR 67249, November 9, 2000).  In this action, EPA is not
addressing any tribal implementation plans.  This action is limited to
states that do not meet their existing obligation for PSD SIP submittal.
 Thus, Executive Order 13175 does not apply to this action.   

Although Executive Order 13175 does not apply to this proposed rule, EPA
specifically solicits additional comment on this proposed action from
tribal officials.  

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 merely prescribes EPA's action for states that do not
meet their existing obligation for PSD SIP submittal.   

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

	This action is not a "significant energy action" as defined in
Executive Order 13211 (66 FR 28355(May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply, distribution,
or use of energy.  This action merely prescribes EPA's action for states
that do not meet their existing obligation for PSD SIP submittal.   

I.	National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of
1995 ("NTTAA"), Public Law No. 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 proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus
standards.

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

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice.  Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.

	EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not affect
the level of protection provided to human health or the environment. 
This proposed rule merely prescribes EPA's action for states that do not
meet their existing obligation for PSD SIP submittal.   

VI.	Statutory Authority

The statutory authority for this action is provided by sections 101,
111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401, 7411,
7414, 7416, and 7601).

List of Subjects in 40 CFR Part 52 

Air pollution control, Carbon dioxide, Carbon dioxide equivalents,
Carbon monoxide, Environmental protection, Greenhouse gases,
Hydrofluorocarbons, Intergovernmental relations, Lead, Methane, Nitrogen
dioxide, Nitrous oxide, Ozone, Particulate matter, Perfluorocarbons,
Reporting and recordkeeping requirements, Sulfur hexafluoride, Sulfur
oxides, Volatile organic compounds.

________________________ 

Dated: 

_________________________ 

Lisa P. Jackson, 

Administrator.

 EPA respects the unique relationship between the U.S. government and
tribal authorities and acknowledges that tribal concerns are not
interchangeable with state concerns.  However, for convenience, we refer
to "states" in this rulemaking to collectively mean states, local
permitting authorities, and tribal authorities.

 Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule; Final Rule.  75 FR 31514.  The Tailoring Rule is
described in more detail later in this preamble.

 "Endangerment and Cause or Contribute Findings for Greenhouse Gases
Under Section 202(a) of the Clean Air Act."  74 FR 66496 (December 15,
2009).

 "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.

 "Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate
Average Fuel Economy Standards; Final Rule."  75 FR 25324 (May 7, 2010).

 "Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule; Final Rule."  75 FR 31514 (June 3, 2010).

 In the Tailoring Rule, we noted that commenters argued, with some
variations, that the PSD provisions applied only to NAAQS pollutants,
and not GHGs, and we responded that the PSD provisions apply to all
pollutants subject to regulation, including GHGs.  See 75 FR 31560-62,
"Prevention of Significant Deterioration and Title V GHG Tailoring Rule:
EPA's Response to Public Comments," May 2010, pp.38-41.  We maintain our
position that the PSD provisions apply to all pollutants subject to
regulation, and we incorporate by reference our discussion of this issue
in the Tailoring Rule. 

 "Interpretation of Regulations that Determine Pollutants Covered by
Clean Air Act Permitting Programs," 75 FR 17004 (finalizing 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).  

 Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule; Final Rule. 75 FR 31514.  

 In the following listed state or local jurisdictions, as well as in all
Indian country, EPA is the PSD permitting authority, implementing the
federal PSD regulation at 40 CFR 52.21:  American Samoa; Arizona (some
areas); California (most areas); District of Columbia; Guam;
Massachusetts; New Jersey; New York; Northern Mariana Islands; Puerto
Rico; Trust Territories; and the Virgin Islands.  In a smaller number of
areas, listed as follows, the state or local permitting authority is
delegated at least partial authority by EPA to implement the federal PSD
regulation:  Arizona (some areas); California (some areas); Hawaii;
Illinois; Minnesota; Nevada (most areas); Pennsylvania (some areas); and
Washington.  

 "Finding of Significant Contribution and Rulemaking for Certain States
in the Ozone Transport Assessment Group Region for Purposes of Reducing
Regional Transport of Ozone; Rule."  63 FR 57356 (October 27, 1998).

 Following a 1997 review of our national ambient air quality standards
("NAAQS") for particulate matter, we promulgated NAAQS for fine
particles (PM2.5).  We then designated all areas of the country as
"attainment,"  "nonattainment," or unclassifiable for the PM2.5
standards, which became effective in April 2005.  Pursuant to the CAA,
states are obliged to revise their PSD regulations to include the new
PM2.5 standards.

 The source would be able to receive a state-issued permit, but the lack
of a federally approved permit means that the source would not be in
accordance with federal requirements if it constructed or modified.

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Issue Permits under the Prevention of Significant Deterioration Program
to Sources of Greenhouse Gas Emissions:  Finding of Substantial
Inadequacy and SIP Call

