Federal Register: December 13, 2010 (Volume 75, Number 238)
DOCID: fr13de10-6 FR Doc 2010-30854
ENVIRONMENTAL PROTECTION AGENCY
CFR Citation: 40 CFR Part 52
EPA ID: [EPA-HQ-OAR-2010-0107; FRL-9236-3]
NOTICE: Part II
DOCUMENT ACTION: Final rule.
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
DATES: This action is effective on December 13, 2010. The deadline for each state to submit its corrective SIP revision is listed in table IV 1, ``SIP Call States and SIP Submittal Deadlines'' in the SUPPLEMENTARY INFORMATION section of this rule.
The EPA is issuing a finding that the EPA-approved state implementation plans (SIP) of 13 states (comprising 15 state and local programs) are substantially inadequate to meet Clean Air Act (CAA) requirements because they do not apply Prevention of Significant Deterioration (PSD) requirements to greenhouse gas (GHG)emitting sources. In addition, EPA is issuing a ``SIP call'' for each of these states, which requires the state to revise its SIP as necessary to correct such inadequacies. Further, EPA is establishing a deadline for each state to submit its corrective SIP revision. These deadlines, which differ among the states, range from December 22, 2010, to December 1, 2011.
Environmental Protection Agency
I. General Information
A. Does this action apply to me?
Entities affected by this rule include state and local permitting
authorities.\1\ In this rule, EPA finds that any state's SIPapproved
PSD applicability provisions that do not apply the PSD program to GHG
emitting sources are substantially inadequate to meet CAA requirements,
under CAA section 110(k)(5), and such states will be affected by this
rule. For example, if a state's PSD regulation identifies its regulated
New Source Review (NSR) pollutants by specifically listing each
individual pollutant and the list omits GHGs, then the regulation is substantially inadequate.
\1\ For convenience, we refer to ``states'' in this rulemaking to collectively mean states and local permitting authorities.
Entities 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 a GHG PSD rule that EPA recently promulgated, which [[Page 77699]]
we refer to as the Tailoring Rule.\2\ This independent obligation on sources is specific to PSD and derives from CAA section 165(a). The majority of entities affected by this action are in the following groups:
\2\ Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 2010).
Industry group NAICS \a\
Utilities (electric, natural 2211, 2212, 2213
gas, other systems).
Manufacturing (food, 311, 312, 313, 314, 315, 316 beverages, tobacco,
Wood product, paper 321, 322
Petroleum and coal products 32411, 32412, 32419
Chemical manufacturing....... 3251, 3252, 3253, 3254, 3255, 3256, 3259 Rubber product manufacturing. 3261, 3262
Miscellaneous chemical 32552, 32592, 32591, 325182, 32551 products.
Nonmetallic mineral product 3271, 3272, 3273, 3274, 3279 manufacturing.
Primary and fabricated metal 3311, 3312, 3313, 3314, 3315, 3321, 3322, manufacturing. 3323, 3324, 3325, 3326, 3327, 3328, 3329 Machinery manufacturing...... 3331, 3332, 3333, 3334, 3335, 3336, 3339 Computer and electronic 3341, 3342, 3343, 3344, 3345, 4446 products manufacturing.
Electrical equipment, 3351, 3352, 3353, 3359
appliance, and component
Transportation equipment 3361, 3362, 3363, 3364, 3365, 3366, 3366, manufacturing. 3369
Furniture and related product 3371, 3372, 3379
Miscellaneous manufacturing.. 3391, 3399
Waste management and 5622, 5629
Hospitals/nursing and 6221, 6231, 6232, 6233, 6239 residential care facilities.
Personal and laundry services 8122, 8123
Nonresidential (commercial). Not available. Codes only exist for private households, construction and leasing/sales industries.
\a\ North American Industry Classification System.
B. How is the preamble organized?
The information presented in this preamble is organized as follows: I. General Information
A. Does this action apply to me?
B. How is the preamble organized?
II. Overview of Final Rule
A. CAA and Regulatory Context
1. SIP PSD Requirements
2. Recent EPA Regulatory Action Concerning PSD Requirements for GHGemitting Sources
3. SIP Inadequacy and Corrective Action
4. State PSD SIPs
B. Proposed Action
1. Finding of Substantial Inadequacy and SIP Call
2. Corrective SIP Revision
IV. Final Action and Response to Comments
A. Response to Comments
B. Finding of Substantial Inadequacy and SIP Call
1. Overall Basis
2. StateSpecific Actions
C. Requirements for Corrective SIP Revision
1. Application of PSD Program to GHGEmitting Sources
2. Definition and Calculation of Amount of GHGs
D. Response to Procedural and Other Comments
1. Approved SIP PSD Programs That Apply to GHG Sources
2. Opportunity for Notice and Comment
3. Federal Implementation Plan
V. SIP Submittals
A. EPA Action: Findings of Failure To Submit and Promulgation of FIPs; Process for Action on Submitted SIPs
1. Actions on SIP Submittals
2. Findings of Failure To Submit and Promulgation of FIPs
3. Rescission of the FIP
B. Streamlining the State Process for SIP Development and Submittal
C. Primacy of the SIP Process
D. Effective Date
VI. Statutory and Executive Order Reviews
A. Executive Order 12866Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform
E. Executive Order 13132Federalism
F. Executive Order 13175Consultation and Coordination With Indian Tribal Governments
G. Executive Order 13045Protection of Children From Environmental Health Risks and Safety Risks
H. Executive Order 13211Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898Federal Actions To Address
Environmental Justice in Minority Populations and LowIncome Populations
K. Congressional Review Act
VII. Judicial Review
VIII. Statutory Authority
II. Overview of Final Rule
This rulemaking is related to four distinct GHGrelated actions
recently taken by EPA. Some of these actions, in conjunction with the
operation of the applicable CAA provisions, will require stationary
sources that emit large amounts of GHGs to obtain a PSD permit before
they construct or modify, beginning January 2, 2011. In one of these
actions, which we call the Tailoring Rule, EPA limited the
applicability of PSD to GHGemitting sources at or above specified thresholds.\3\
\3\ Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3, 2010).
Most states include EPAapproved PSD programs in their state
implementation plans (SIPs), and, as a result, they act as the permitting
authority. Most of these states' PSD programs apply to GHGemitting sources, and through a separate regulatory action, EPA and these states are now taking steps to limit the applicability of PSD to GHGemitting sources at or above the Tailoring Rule thresholds. However, 13 states have SIPs with EPAapproved PSD programs that do not apply PSD to GHG emitting sources, and it is those states that are the subject of this rulemaking.
In this rulemaking, EPA is (i) issuing a finding of substantial inadequacy for 13 states because their EPAapproved SIP PSD programs do not apply to GHGemitting sources, (ii) issuing a requirement, which we refer to as a SIP call, that these states submit a corrective SIP revision to assure that their PSD programs will apply to GHGemitting sources, and (iii) establishing the deadline by which each of these states must submit its corrective SIP revision, which differs among the various states and ranges from December 22, 2010, to December 1, 2011. Each of these actions is authorized under CAA section 110(k)(5). The 13 states (some of which include at least one local permitting agency) are: Arizona; Arkansas; California; Connecticut; Florida; Idaho; Kansas; Kentucky; Nebraska; Nevada; Oregon; Texas; and Wyoming.
If a state for which we are finalizing a SIP call in this action does not submit its corrective SIP revision by its deadline, EPA intends to immediately issue to the state a finding of failure to submit a required SIP revision and also immediately promulgate a federal implementation plan (FIP) for the state, under CAA section 110(c)(1)(A). EPA proposed this SIP call and the FIP by separate notices dated September 2, 2010. ``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 CallProposed Rule,'' 75 FR 53892; ``Action to Ensure Authority to Issue Permits under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas Emissions: Federal Implementation PlanProposed Rule,'' 75 FR 53883.
This SIP call is important because without it, large GHGemitting sources in these states may be unable to obtain a PSD permit for their GHG emissions and therefore may face delays in undertaking construction or modification projects. This is because without the further action by the states or EPA that the SIP call is designed to lead to, sources that emit or plan to emit large amounts of GHGs will, starting January 2, 2011, be required to obtain PSD permits before undertaking new construction or modification projects, but neither the states nor EPA would be authorized to issue the permits. The SIP call and, in the states in which it is necessary, the FIP will assure that in each of the 13 stateswith the exception of Texaseither the state or EPA will have the authority to issue PSD permits by January 2, 2011, or sufficiently soon thereafter so that sources in the state will not be adversely affected by the shortterm lack of a permitting authority. We are planning additional actions to ensure that GHG sources in Texas can be issued permits as of January 2, 2011.
The SIP submittal deadlines that this rule establishes for the states reflect, in almost all instances, a recognition by EPA and the states of the need to move expeditiously to assure the availability of a permitting authority. EPA emphasizes that for those states for which EPA proceeds to promulgate a FIP: (i) The purpose of the FIP is solely to assure that industry in the state will be able to obtain required air permits to construct or modify; (ii) EPA encourages the state to assume delegation of the FIP so that the state will become the permit issuer (although administering EPA regulations); and (iii) EPA will rescind the FIP as soon as the state submits and EPA approves a corrective SIP revision.
The corrective SIP revision that this rule requires must: (i) Apply
the SIP PSD program to GHGemitting sources; (ii) define GHGs as the
same pollutant to which the LightDuty Vehicle Rule \4\ (LDVR) applies,
that is, a single pollutant that is the aggregate of the group of six
gases (carbon dioxide (CO
A. CAA and Regulatory Context
EPA described the relevant background information in the SIP call proposal, 75 FR at 5389698, as well as in the final Tailoring Rule, 75 FR at 3151821. Knowledge of this background information is presumed and will be only briefly summarized here.
1. SIP PSD Requirements
In general, under the CAA PSD program, as discussed later in this preamble, a stationary source must obtain a permit prior to undertaking construction or modification projects that would result in specified amounts of new or increased emissions of air pollutants that are subject to regulation under other provisions of the CAA. CAA sections 165(a), 169(1), 169(2)(C). The permit must, among other things, include emission limitations associated with the best available control technology (BACT). CAA section 165(a)(4).
Specifically, 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 the source first obtains a PSD permit that, among other things, includes emission limitations that qualify as BACT. CAA sections 165(a)(1), 165(a)(4), 169(1). Longstanding EPA regulations have interpreted the term ``any air pollutant'' more narrowly so that only emissions of any pollutant subject to regulation under the CAA trigger PSD. This interpretation currently is found in 40 CFR 51.166(j)(1), 52.21(j)(2), which applies PSD to any ``regulated NSR pollutant,'' a term that the regulations then define to include four classes of air pollutants, including, as a catchall, ``any pollutant that otherwise is subject to regulation under the Act.'' 40 CFR 51.166(b)(49)(iv), 52.21(b)(50)(iv).
The CAA contemplates that the PSD program be implemented by the states through their SIPs. CAA section 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 section 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 section 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
provisions, CAA section 165(a)(1), 169(1), mandate that SIPs include
PSD programs that are applicable to any air pollutant that is subject
to regulation under the CAA, including, as discussed later in this preamble, GHGs on and after January 2, 2011.\5\
\5\ In the Tailoring Rule, we noted that commenters argued, with some variations, that the PSD provisions applied only to National Ambient Air Quality Standards (NAAQS) pollutants, and not GHGs, and we responded that the PSD provisions apply to all pollutants subject to regulation, including GHGs. See 75 FR 3156062; ``Prevention of Significant Deterioration and Title V GHG Tailoring Rule: EPA's Response to Public Comments,'' May 2010, pp. 3841. We are not reopening that issue in this rulemaking.
2. Recent EPA Regulatory Action Concerning PSD Requirements for GHG emitting Sources
In recent months, EPA has taken four distinct actions related to
GHGs under the CAA. Some of these, in conjunction with the operation of
the CAA, trigger PSD applicability for GHGemitting sources on and
after January 2, 2011, but focus the scope of PSD on the largest GHG
emitting sources. The first of these four actions was what we call the
``Endangerment Finding,'' which is governed by CAA section 202(a).
Based on an exhaustive review and analysis of the science, in December
2009 the Administrator exercised her judgment to conclude that ``six
greenhouse gases taken in combination endanger both the public health
and the public welfare of current and future generations.'' 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).'' \6\ This Endangerment
Finding led directly to promulgation of what we call the ``Vehicle
Rule'' or the ``LDVR,'' also governed by CAA section 202(a), in which
EPA set standards for the emission of greenhouse gases for new motor
vehicles built for model years 20122016.\7\ The other two actions were
what we call the ``Johnson Memo Reconsideration'' or the ``Timing
Decision'' \8\ and the Tailoring Rule and were governed by the PSD and
title V provisions in the CAA. EPA issued them to address the automatic
statutory triggering of these programs for greenhouse gases due to the
Vehicle Rule's establishing the first controls for greenhouse gases
under the Act. More specifically, the Johnson Memo Reconsideration
provided EPA's interpretation of a preexisting definition in its PSD
regulations delineating the ``pollutants'' that are taken into account
in determining whether a source must obtain a PSD permit and the
pollutants each permit must control. Regarding the Vehicle Rule, the
Johnson Memo Reconsideration stated that such regulations, when they
take effect on January 2, 2011, will, by operation of the applicable
CAA requirements, subject GHGemitting sources to PSD requirements. The
Tailoring Rule limited the applicability of PSD requirements to the largest GHGemitting sources on a phasedin basis.
\6\ ``Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 66496 (December 15, 2009).
\7\ ``LightDuty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 (May 7, 2010).
\8\ ``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'' (which we call the ``Johnson Memo''), December 18, 2008.
Certain specific aspects of these rules are important to highlight
for purposes of the present action. In the Endangerment Finding, the
Administrator found that six longlived and directly emitted GHGs
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 same six GHGs (CO
3. SIP Inadequacy and Corrective Action
The CAA provides a mechanism for the correction of SIPs with certain types of inadequacies, under CAA section 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 EPA does not receive the corrective SIP revision by the deadline, CAA section 110(c) authorizes EPA to ``find that [the] State has failed to make a required submission.'' CAA section 110(c)(1)(A). Once EPA makes that finding, CAA section 110(c)(1) requires EPA to ``promulgate a Federal implementation plan at any time within 2 years after the [finding] * * * unless the State corrects the deficiency, and [EPA] approves the plan or plan revision, before [EPA] promulgates such [FIP].''
4. State PSD SIPs
The states and other jurisdictions in the U.S. may be grouped into three categories with respect to their PSD programs and the applicability of those PSD programs to GHGemitting sources:
The first category is the states that 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.\9\
\9\ EPA identified the first category of states, local jurisdictions, and Indian country, in the proposal for this action. 75 FR at 53898, n. 11. This list is updated in Declaration of Regina McCarthy, Coalition for Responsible Regulation v. EPA, DC Cir. No. 091322 (and consolidated cases) (McCarthy Declaration), Attachment 1, Table 1, which can be found in the docket for this rulemaking, except that the Northern Mariana Islands and the Trust Territories also fall into this category. EPA is not taking any final action with respect to these jurisdictions, and EPA's identification of them in this action is for informational purposes only.
The second category comprises states that have approved SIP PSD programs that do not apply to GHGemitting sources. This second category is the subject of this rulemaking and is discussed further in this preamble.
The third category, which includes most of the states, is states
that have approved SIP PSD programs that apply to GHGemitting sources.
Those SIPs have PSD applicability provisions that identify, as some or
all of the pollutants covered under their PSD program, any ``pollutant
subject to regulation'' under the CAA. Further, in these states, this
term in effect is automatically updating so as to cover pollutants that
become newly subject to regulation under the CAA without further action
by the state. As a result, the PSD programs of these states will apply
to GHG emissions as of January 2, 2011, when GHGs become subject to regulation under the LDVR. See 40 CFR 52.21(b)(50).\10\
\10\ EPA included in the proposal a list of states and local jurisdictions that appeared to fall into this third category. 75 FR at 53899, table IV2. This list is updated in Declaration of Regina McCarthy, Coalition for Responsible Regulation v. EPA, DC Cir. No. 091322 (and consolidated cases) (McCarthy Declaration), Attachment 1, Table 3, which can be found in the docket for this rulemaking. Except to the extent discussed later in this preamble, EPA is not taking final action in this rule with respect to these states and local jurisdictions.
B. Proposed Action
1. Finding of Substantial Inadequacy and SIP Call
In the proposal for this rulemaking, EPA proposed the SIP call for
13 states whose SIPs have EPAapproved PSD programs but did not appear
to apply to GHGemitting sources. These 13 states are listed in table III1:
Table III1States with SIPs that EPA Proposed Do Not Appear To Apply PSD to GHG Sources
[Presumptive SIP Call List]
State (or area)
Arizona: Pinal County; Rest of State (Excludes Maricopa County, Pima County, and Indian Country)
California: Sacramento Metropolitan AQMD
Kentucky: Jefferson County; Rest of State
Nevada: Clark County
In the proposal, EPA explained that it had identified these 13
states on the basis of EPA's review of the SIP PSD provisions and other
relevant state law, as well as the views of the states as expressed in
their written statements to EPA following promulgation of the Tailoring
Rule and in other communications with the EPA regions. EPA further
explained that this information appeared to indicate that these SIP PSD
provisions did not apply to GHGemitting sources because of one or
another of the following problems, depending on the state: (i) The PSD
applicability provision applies to any ``pollutant subject to
regulation'' under the CAA, but other provisions of state law preclude
what we call automatic updating or forward adoption, so that this
applicability provision covers only pollutantsnot including GHGs
that were subject to regulation at the time the state promulgated or
enacted the applicability provision; (ii) the PSD applicability
provision does not apply to any ``pollutant subject to regulation''
under the CAA and instead applies to only specifically identified
pollutants, not including GHGs; or (iii) the SIP explicitly precludes
regulation of CO
As a related matter, we noted that if a state with a SIP that did not appear to apply PSD to GHGemitting sources submitted a SIP revision prior to December 1, 2010the date EPA intended to issue the SIP callEPA would not include that state in the SIP call.
EPA included with the proposal a technical support document (TSD) that addressed each state with an approved PSD program that did not at time of proposal appear to apply to GHGemitting sources. The TSD referenced the applicable state law and the position of the state as to PSD applicability for GHGemitting sources, based on communications to EPA. EPA also included in the TSD much the same information for each state with an approved PSD program that did at time of proposal appear to apply to GHGemitting sources.
For each of the 13 states, EPA proposed to issue a finding that the SIP is ``substantially inadequate * * * to * * * comply with any requirement of [the CAA]'' and EPA proposed to ``require the State to revise the plan as necessary to correct such inadequacies,'' i.e., EPA proposed to issue a SIP call in accordance with CAA section 110(k)(5). EPA explained that the reference in CAA section 110(k)(5) to ``any requirement of [the CAA]'' includes the PSD requirements and that SIPs are therefore required to include PSD programs that apply to sources that emit pollutants subject to regulation. As a result, EPA proposed the 13 states' SIPs merit a finding of substantial inadequacy because they fail to apply the PSD program to GHGemitting sources on and after January 2, 2011. EPA further proposed that because the SIPs merit a finding of substantial inadequacy, EPA is authorized to issue a SIP call and thereby require a corrective SIP revision.
EPA invited comment on its legal interpretation of the 13 states' SIPs and made clear that for any of these states, if EPA did not receive any further information from the state or other commenters indicating that EPA's proposed interpretation was incorrect, EPA intended to finalize the SIP call, but that on the other hand, if EPA did receive further information indicating that the proposed interpretation was incorrect, then EPA would not finalize the SIP call.
In addition, EPA specifically solicited comment on its
interpretation that the approved SIPs for the other states do appear to
apply their PSD program to GHGemitting sources. EPA indicated that if
it received comments indicating, for any of these latter states, that
the SIP does not apply PSD to GHG sources, then, without further
proposed action, EPA would issue a final finding of substantial inadequacy and SIP call for
that state. EPA identified these states as listed in table III2, ``States with SIPs that EPA Proposed Appear to Apply PSD to GHG Sources (Presumptive Adequacy List).'' \11\
\11\ Note that in this final rule, except for any of these states for which EPA is making a finding of substantial inadequacy and issuing a SIP call, EPA is not taking any action with respect to these states.
\12\ Pennsylvania's Philadelphia County correctly belongs in the category of states that do not have PSD programs approved into their SIPs. We note this correction for informational purposes only, as it has no bearing on this rulemaking. A corrected table III2 would list, ``Pennsylvania: All except Allegheny County and Philadelphia County.'' However, we have not reflected the correction in table III2 itself, for the reason that the table represents our proposed list. In addition, as noted above, an updated version of this category of jurisdictionsthose that have approved PSD SIPs that apply to GHGemitting sourcesappears in Declaration of Regina McCarthy, Coalition for Responsible Regulation v. EPA, DC Cir. No. 091322 (and consolidated cases) (McCarthy Declaration), Attachment 1, Table 3, which can be found in the docket for this rulemaking. \13\ Note that in this final action, we are issuing a SIP call for Wyoming, based on information submitted by the state during the SIP call comment period.
Table III2States With SIPs That EPA Proposed Appear To Apply PSD to GHG Sources
[Presumptive Adequacy List]
State (or area)
Alabama: Jefferson County; Huntsville; Rest of State
California: Mendocino County AQMD; Monterey Bay Unified APCD; North Coast Unified AQMD; Northern Sonoma County APCD
New Mexico: Albuquerque; Rest of State
North Carolina: Forsyth County; Mecklenburg; Western NC; Rest of State North Dakota
Pennsylvania: All except Allegheny County \12\
Tennessee: Chattanooga; Nashville; Knoxville; Memphis; Rest of State Utah
We further stated in the proposal that we intended to finalize the finding of substantial inadequacy and the SIP call on or about December 1, 2010, approximately one month in advance of the January 2, 2011, date when PSD requirements will first apply to GHGemitting sources. We justified this timing on the need to give sources notice that the PSD requirements apply. In addition, we recognized that as a practical matter, some states would not object to our imposing 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 would be unable to obtain a permit due to lack of a permitting authority to process their PSD applications. We observed that we could not 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.
In the proposal, we also described in greater detail the process for finalizing the SIP call. We stated that we would issue the final SIP call for any state for which we had concluded that the PSD program did not as of that date apply to GHGemitting sources. However, if a state that was included in the proposed SIP call were to submit a SIP revision by December 1, 2010, that purported to correct that inadequacy, we would not finalize the finding or SIP call for that state. Rather, we would take action on its SIP submittal as promptly as possible. While we will strive to expedite approval of such SIP submissions, we could not commit in the proposal to approving them by January 2, 2011. We therefore cautioned in our proposal (see 75 FR at 53904) that states with submitted (but not EPAapproved) SIP revisions will not be able to issue federally approved PSD permits until those SIP revisions are approved. We stated that for all other states for which we concluded that the PSD program did not apply to GHG sources, on or about December 1, 2010, we would make the finding of substantial inadequacy and issue the SIP call in a final rule and submit the notice for the rule for publication in the Federal Register as soon as possible thereafter. We stated that at the same time, we would also notify the state of the finding of substantial inadequacy by letter and by posting the signed SIP call rulemaking on our Web site. In view of the urgency of the task, which is to do everything possible to ensure that a PSD permitting authority for affected GHG sources is in place by January 2, 2011, we proposed to give the final SIP call an effective date of its publication date. We recognized that this process is highly expedited, but we stated that it was essential to maximize our and the states' opportunity to put in place a permitting authority to process PSD permit applications beginning on January 2, 2011, without which sources may be unable to proceed with plans to construct or modify.
In the proposal, EPA discussed in some detail the SIP submittal deadline it was proposing to establish under CAA section 110(k)(5). Under this provision, in notifying the state of the finding of substantial inadequacy and issuing the SIP call, EPA ``may establish reasonable deadlines (not to exceed 18 months after the date of such notice) for the submission of such plan revisions.'' EPA proposed to allow the state up to 12 months from the date of signature of the final finding of substantial inadequacy and SIP call within which to submit the SIP revision, unless, during the comment period, the state expressly advised that it would not object to a shorter periodas short as 3 weeks from the date of signature of the final rulein which case EPA would establish the shorter period as the deadline. EPA stated that, assuming that EPA were to finalize the SIP call on or about December 1, 2010, as EPA said it intended to do in the proposal, then the earliest possible SIP submittal deadline would be December 22, 2010.
A few states did not inform EPA until after the end of the comment period for the proposed SIP call that they would not object to a deadline earlier than December 2011. Nevertheless, we considered their responses when establishing their SIP submittal deadlines in this final action.
EPA made clear that the purpose of establishing the shorter period
as the deadlinefor any state that advises us that it does not object
to that shorter periodis to accommodate states that wish to ensure
that a FIP is in effect as a backstop to avoid any gap in PSD
permitting. EPA also made clear that if a state did not advise EPA that
it does not object to a shorter deadline, then the 12month deadline
would apply. EPA emphasized that for any state that receives a deadline
after January 2, 2011, the affected GHGemitting sources in that state
may be delayed in their ability to receive a federally approved permit
authorizing construction or modification. That is, after January 2,
2011, these sources may not have available a permitting authority to review their permit applications until
the date that EPA either approves the SIP submittal or promulgates a FIP.
EPA proposed that this 3weekto12month time period, although expedited, meets the CAA section 110(k)(5) requirement as a ``reasonable'' deadline in light of: (i) The SIP development and submission process; (ii) the preference of the state; and (iii) the imperative to minimize the period when sources will be subject to PSD but will not have available a PSD permitting authority to act on their permit application and therefore may face delays in constructing or modifying.
2. Corrective SIP Revision
EPA proposed certain requirements for each state receiving a SIP call. The central requirement is that the corrective SIP revision must apply the PSD program to GHGemitting sources. EPA proposed two different ways for the SIP revision to do so: First, the SIP revision could revise the PSD applicability provisions or other provisions of the SIP or state law that affect PSD applicability, to assure that the PSD applicability provisions are automatically updating. This means that these provisions would apply PSD to any air pollutant as soon as the pollutant becomes newly subject to regulation under the CAA. As a result, the PSD applicability provisions will apply to GHGs as of January 2, 2011. In this case, EPA would approve the SIP revision as fully meeting the CAA requirements. Second, and as an alternative, the SIP revision could simply specifically identify GHGs as subject to PSD applicability, in which case EPA would approve the SIP revision on the basis that the revision is SIPstrengthening, as discussed later in this preamble.
In addition, EPA proposed to require that the corrective SIP revision, in applying the PSD program to GHGemitting sources, must either limit PSD applicability to GHGemitting sources at or above the Tailoring Rule thresholds or adopt lower thresholds. However, EPA added that if the state adopts lower thresholds, then the state must demonstrate 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 section 110(a)(2)(E)(i).
EPA also noted in the proposal that the state must define GHGs as a
single pollutant that is the aggregate of the group of six gases:
As we noted in the preamble to the proposed rulemaking (75 FR at
53902), EPA issued a Call for Information (CFI) to solicit public
comment and data on technical issues that might be used to consider
biomass fuels and the emissions resulting from their combustion
differently with regard to applicability under PSD and with regard to
the BACT review process under PSD. Subsequently, EPA discussed these
considerations in its ``PSD and Title V Permitting Guidance for
Greenhouse Gases'' \14\ that was released on November 10, 2010, and
made available for public comment. In that GHG permitting guidance
document, EPA described on pages 8 through 10 how permitting
authorities may consider the use of biomass for energy generation when
carrying out their BACT analyses for GHGs. EPA also described plans for
future guidance regarding analysis of the environmental, energy, and
economic benefits of biomass in GHG BACT determinations.\15\
\14\ See http://www.epa.gov/nsr/ghgpermitting.html/for more
information on EPA's recent GHG permitting guidance document and on EPA's other permitting guidance for GHGs.
\15\ Specifically, we stated the following in ``PSD and Title V Permitting Guidance for Greenhouse Gases,'' pages 810: In the annual US inventory of GHG emissions and sinks, EPA has reported that the LandUse, LandUse Change and Forestry (LULUCF) sector (including those stationary sources using biomass for energy) in the United States is a net carbon sink, taking into account the carbon gains (e.g., terrestrial sequestration) and losses (e.g., emissions or harvesting) from that sector. [Footnote: 2010 US Inventory Report at http://epa.gov/climatechange/emissions/usinventoryreport.html.] On the basis of the Inventory results and other considerations, numerous stakeholders requested that EPA exclude, either partially or wholly, emissions of GHG from bioenergy and other biogenic sources for the purposes of the BACT analysis and the PSD program based on the view that the biomass used to produce bioenergy feedstocks can also be a carbon sink and therefore management of that biomass can play a role in reducing GHGs. [Footnote: GHG emissions from bioenergy and other biogenic sources are generated during combustion or decomposition of biologicallybased material, and include sources such as utilization of forest or agricultural products for energy, wastewater treatment and livestock management facilities, and fermentation processes for ethanol production.] EPA plans to provide further guidance on the how to consider the unique GHG attributes of biomass as fuel.
Even before EPA takes further action, however, permitting authorities may consider, when carrying out their BACT analyses for GHG, the environmental, energy and economic benefits that may accrue from the use of certain types of biomass and other biogenic sources (e.g., biogas from landfills) for energy generation, consistent with existing air quality standards. In particular, a variety of federal and state policies have recognized that some types of biomass can be part of a national strategy to reduce dependence on fossil fuels and to reduce emissions of GHGs. Federal and state policies, along with a number of state and regional efforts, are currently under way to foster the expansion of renewable resources and promote biomass as a way of addressing climate change and enhancing forestmanagement. EPA believes that it is appropriate for permitting authorities to account for both existing federal and state policies and their underlying objectives in evaluating the environmental, energy and economic benefits of biomass fuel. Based on these considerations, permitting authorities might determine that, with respect to the biomass component of a facility's fuel stream, certain types of biomass by themselves are BACT for GHGs.
To assist permitting authorities further in considering these factors, as well as to provide a measure of national consistency and certainty, EPA intends to issue guidance in January 2011 that will provide a suggested framework for undertaking an analysis of the environmental, energy and economic benefits of biomass in Step 4 of the topdown BACT process, that, as a result, may enable permitting authorities to simplify and streamline BACT determinations with respect to certain types of biomass.
The guidance will include qualitative information on useful
issues to consider with respect to biomass combustion, such as
specific feedstock types and trends in carbon stocks at different
spatial scales (national, regional, state). The aim of the
information will be to assist permitting authorities in evaluating
``carbon neutrality'' in the assessment of environmental, energy and
economic impacts of control strategies under Step 4 of the BACT
process, which, again, may enable the streamlining of BACT
determinations with respect to certain types of biomass. The agency
is currently reviewing the comments received in response to the July
15, 2010 Call for Information (CFI) that solicited feedback from
stakeholders on approaches to accounting for GHG emissions from
bioenergy and other biogenic sources. [Footnote: The Call for
Information was published on July 15, 2010. (75 FR 41173 and 75 FR
45112). EPA received over 7,000 comments and is still assessing
them.] These comments, among other things, suggest that certain
biomass feedstocks (e.g., biogas) may be considered carbon neutral
with minor additional analysis. Such a carbon benefit may further
inform the BACT process, especially where a permitting authority
considers the net carbon impact or carbonneutrality of certain
feedstocks in accounting for the broader environmental implications of using particular biomass feedstocks.
Finally, EPA also plans to determine by May 2011, well before the start of the second phase of PSD implementation pursuant to the Tailoring Rule, whether the issuance of a supplemental rule is appropriate to address whether the Clean Air Act would allow the Agency and permitting authorities or permitted sources, when determining the applicability of PSD permitting requirements to sources of biogenic emissions, to quantify carbon emissions from bioenergy or biogenic sources by applying separate accounting rules for different types of feedstocks that reflect the net impact of their carbon emissions. This determination will take into
consideration both the LULUCF inventory and the full record of responses to the CFI.
IV. Final Action and Response to Comments
A. Process for Response to Comments
We proposed our SIP call and FIP actions as companion proposals. Both proposals were signed by the Administrator and made publicly available on August 12, 2010, and both proposals were published in the Federal Register on September 2, 2010. The SIP call and FIP actions share a rulemaking docket, and the majority of comments that were submitted to EPA during the proposals' comment periods were provided in the form of a letter that intermingled comments on the SIP call and the FIP actions. We respond to comments on the SIP call proposal in this preamble, in a Response to Comment Document for the SIP call, and in a Supplemental Information Document for the SIP call. The Response to Comment Document and Supplemental Information Document can be found in the docket for this action. We will respond to comments on the FIP when we finalize that action.
B. Finding of Substantial Inadequacy and SIP Call
In this action, EPA is finalizing its proposal, under CAA section
110(k)(5), to: (i) Issue a finding that the SIPs for 13 states
(comprising 15 state and local programs) are ``substantially inadequate
to * * * comply with any requirement of this Act'' because their PSD
programs do not apply to GHGemitting sources as of January 2, 2011;
(ii) ``require the state[s] to revise the [SIP] * * * to correct such
inadequacies,'' that is, to issue a SIP call requiring submission of a
corrective SIP revision; and (iii) establish a ``reasonable deadline
(not to exceed 18 months after the date of such notice)'' for the
submission of the corrective SIP revision. This deadline ranges, for
different states, from 3 weeks to 12 months after the date of this
action. The 13 states and their deadlines are listed in table IV1, ``SIP Call States and SIP Submittal Deadlines'':
Table IV1SIP Call States and SIP Submittal Deadlines SIP State (or area) submittal deadline Arizona: Pinal County...................................... 12/22/10 Arizona: Rest of State (Excludes Maricopa County, Pima 12/22/10 County, and Indian Country)............................... Arkansas................................................... 12/22/10 California: Sacramento Metropolitan AQMD................... 01/31/11 Connecticut................................................ 03/01/11 Florida.................................................... 12/22/10 Idaho...................................................... 12/22/10 Kansas..................................................... 12/22/10 Kentucky (Jefferson County): Louisville Metro Air Pollution 01/01/11 Control District.......................................... Kentucky: Rest of State (Excludes Louisville Metro Air 03/31/11 Pollution Control District (Jefferson County))............ Nebraska................................................... 03/01/11 Nevada: Clark County....................................... 07/01/11 Oregon..................................................... 12/22/10 Texas...................................................... 12/01/11 Wyoming.................................................... 12/22/10
This final rule is consistent with EPA's proposal, except that (i) EPA is not finalizing the SIP call with respect to one state for which EPA proposed the SIP call, namely Alaska, because it has already submitted a revised SIP, and (ii) EPA is finalizing the SIP call with respect to one state for which EPA solicited comment but did not propose the SIP call, namely Wyoming.
In this section of this preamble, we: (1) Explain in detail our
overall basis for these actions, including responding to comments on
that overall basis; and (2) explain concisely our basis for action for
each of the 13 states. In a Supplemental Information Document, which
can be found in the docket for this rulemaking, we include more detail
for our explanations and we respond to statespecific comments we received in response to the proposed actions.
1. Overall Basis
a. Finding of Substantial Inadequacy: Final Action and Response to Comments
(i) Final Action
Our overall basis for issuing the finding of substantial inadequacy and issuing the SIP call for the 13 states is the same as we stated during the proposal. As summarized earlier in this preamble, for each of these 13 states, EPA finds that the failure of the SIP PSD applicability provisions to apply to GHGemitting sources renders the SIP ``substantially inadequate * * * to * * * comply with any requirement of [the CAA]'' and as a result, EPA ``require[s] the State to revise the plan as necessary to correct such inadequacies,'' i.e., issues a SIP call, all in accordance with CAA section 110(k)(5).
We consider the legal basis to be straightforward. CAA section 110(k)(5), as quoted earlier in this preamble, authorizes EPA to issue a finding that a SIP is ``substantially inadequate'' to meet CAA requirements. The CAA does not define the quoted term, and as a result, it should be given its ordinary, everyday meaning. In the present case, the failure of a SIP to apply PSD to GHGemitting sources means that the SIP is ``substantially inadequate'' to comply with CAA requirements because (i) The CAA requires that SIP PSD programs apply PSD to GHG emitting sources, (ii) the SIPs at issue fail to do so, and (iii) applying PSD to GHGemitting sources would affect a large number of sources and permitting actions.
CAA section 110(k)(5) authorizes EPA to issue a finding of substantial inadequacy whenever the SIP fails to comply with ``any requirement of [the CAA].'' CAA section 165(a)(1) provides that ``[n]o major emitting facility * * * may be constructed * * * unless * * * a [PSD] permit has been issued for such proposed facility in accordance with this part.'' CAA section 169(1) defines ``major emitting facility'' as any stationary source that emits specified quantities of ``any air pollutant.'' EPA regulations have long defined ``any air pollutant'' as, at least in part, ``any pollutant * * * subject to regulation under the Act.'' 40 CFR 52.21(b)(50)(iv). Further, CAA section 161 requires SIPs to contain ``emission limitations and such other measures as may be necessary to prevent significant deterioration of air quality * * *'' and CAA section 110(a)(2)(J) requires that ``[e]ach [SIP] * * * meet the applicable requirements of * * * part C of this subchapter (relating to significant deterioration of air quality.'' Reading these provisions together, the CAA requires that PSD requirements apply to any stationary source that emits specified quantities of any air pollutant subject to regulation under the CAA, and those PSD requirements must be included in the approved SIPs.\16\ \16\ EPA has long interpreted the PSD applicability provisions in the CAA to be selfexecuting, that is, they apply by their terms so that a source that emits any air pollutant subject to regulation becomes subject to PSDand, therefore, cannot construct or modify without obtaining a PSD permitand these provisions apply by their terms in this manner regardless of whether the state has an approved SIP PSD program. What's more, until an applicable implementation plan is in placeeither an approved SIP or a FIPno permitting authority is authorized to issue a permit to the source. In a recent decision, the 7th Circuit, mistakenly citing to PSD provisions when the issue before the court involved the separate and different non attainment provisions of CAA sections 171193, concluded that sources could continue to abide by permitting requirements in an existing SIP until amended, even if that SIP does not comport with the law. United States v. Cinergy Corp., No. 093344, 2010 WL 4009180 (7th Cir. Oct. 12, 2010). In stark contrast to the nonattainment provisions actually at issue in Cinergywhich are not selfexecuting and must therefore be enforced through a SIPPSD is selfexecuting; it is the statute (CAA section 165), not just the SIP, that prohibits a source from constructing a project without a permit issued in accordance with the Act.
As of January 2, 2011, GHGemitting sources will become subject to PSD. As a result, the CAA provisions described earlier in this preamble require PSD programs to apply to GHGemitting sources. Accordingly, it is clear that the failure of any SIP PSD applicability provisions to apply the PSD program to GHGemitting sources means that the SIP fails to comply with these CAA requirements.
Moreover, in this case, the failure of the SIPs to apply PSD to GHGemitting sources will affect a substantial number of sources and permitting actions. EPA estimated in the Tailoring Rule that on a nationwide basis, many of the sources that now require PSD permit applications due to their emissions of nonGHG pollutants (which we call ``anyway'' sources) also emit GHG pollutants in quantities that will trigger the application of PSD. On average, on an annual basis nationwide, these sources submit 688 PSD permit applications. 75 FR at 31540. In addition, EPA estimated that beginning on July 2, 2011, on an annual basis nationwide, another 917 permit applications would potentially be submitted due to the GHG emissions of sources undertaking construction or modification activities, even though these sources' other pollutants would not, in and of themselves, trigger PSD. Id. Thus, large numbers of permitting actions are at issue. Moreover, the principal PSD requirement that will apply to GHGemitting sources is the requirement to implement BACT, which is the principal mechanism under the PSD provisions for controlling emissions from nonNAAQS pollutants.
The failure of a SIP to apply PSD to GHGemitting sourceswhen the
SIP is required to apply PSD to GHGemitting sources and when doing so
would, on average, result in a significant number of additional
permitting actions subject to PSDjustifies a finding by the
Administrator that a SIP that does not apply PSD to such sources as of
January 2, 2011, is ``substantially inadequate'' to comply with CAA requirements.
(ii) Response to Comments
(I) Pollutants Subject to the SIP Call
Some commenters stated that failure of a SIP to require PSD permits for GHGemitting sources does not constitute a ``substantial inadequa[cy]'' under CAA section 110(k)(5). In making this point, the commenters first state that ``PSD can only be triggered by pollutants for which EPA has issued a national ambient air quality standard (``NAAQS'') and only in attainment areas for such pollutants.'' The commenters go on to assert that whether a SIP can be considered substantially inadequate due to its failure to require PSD permits depends on the extent to which the foregone controls ``affect * * * the state's ability to attain a NAAQS.'' Then, the commenters claim that the numbers of permits that the state would be required to issue that would include GHG controls beginning January 2, 2011, will be such ``a small number'' that ``the lack of a BACT limit for [GHGs] would not affect in any way the state's ability to attain a NAAQS.'' The commenters explain that the number of permits that would be required for GHG sources under the Tailoring Rule is limited to, on an annual basis, on average, in each state, (i) beginning as of January 2, 2011, ``one or two permits'' for sources that would be subject to PSD anyway due to their emissions of other pollutants (which, again, we call ``anyway'' sources), plus (ii) beginning as of July 1, 2011, 11 permits for sources that would become subject to PSD solely because of their emissions of GHGs.\17\ Again, the commenters assert that the controls foregone from this ``small number'' of permits would have too little an impact on a state's ability to attain a NAAQS to justify finding the SIP to be substantially inadequate under CAA section 110(k)(5). \17\ In another part of their comments, commenters state that the total number of affected permits is ``a few permits with GHG limits in the first 6 months of 2011.''
We find this argument unpersuasive for several reasons. Most importantly, we do not accept what appear to be the premises of this argument, which are that PSD can only be triggered for NAAQS pollutants and that whether deficiencies in a PSD program can render a SIP substantially inadequate depend only on whether any foregone controls affect the state's ability to maintain a NAAQS. In the Tailoring Rule, we addressed at length the comment that PSD can be triggered only by pollutants subject to the NAAQS, and we concluded that as a matter of Chevron Step 1, this view was incorrect and that, instead, PSD applies to nonNAAQS pollutants, including GHGs. (See discussion in Tailoring Rule preamble, 75 FR at 31514 and elsewhere.)\18\ In this rulemaking, we are not reopening that issue. We did not solicit comment on it and our response to this comment should not be construed to be a reopening. \18\ We also explained our view that PSD may be triggered by nonNAAQS pollutants such as GHGs in the Tailoring Rule response to comments document (``Prevention of Significant Deterioration and Title V GHG Tailoring Rule: EPA's Response to Public Comments''), pp. 3441; and in EPA's response to motions for a stay filed in the litigation concerning those rules (``EPA's Response to Motions for Stay,'' Coalition for Responsible Regulation v. EPA, DC Cir. No. 09 1322 (and consolidated cases)), at 4759.
Second, we believe that the commenters have understated the number
of permitting actions that will involve GHG controls. As noted earlier
in this preamble, we provided estimates of the numbers of permits in
the Tailoring Rule. There, we addressed at length the numbers of
permitting actions that would involve GHGs, including soliciting
comment on our proposed estimates and revising our final estimates
based on comments received. In this rulemaking, the GHG PSD SIP call,
we are not reopening that issue. We did not solicit comment on it and
our response to this comment should not be construed to be a reopening.
As noted earlier in this preamble and also in the Tailoring Rule, we
estimated that on an annual basis, nationwide, beginning January 2,
2011, there would be 688 permitting actions for ``anyway'' sources that
would require GHG controls, and, beginning July 1, 2011, there would be
an additional 917 permitting actions per year. These totals are significantly higher than the commenters' estimates.\19\
\19\ Although, again, we are not reopening in this rule the issue of the number of permits that would include GHG controls, we note the following additional reasons why we do not find the commenters' estimates persuasive: (i) The commenters stated that they were adjusting downward what they described as EPA's estimates for ``anyway'' sources, but the commenters did not provide a basis for that downward adjustment. (ii) Some of the commenters have also brought lawsuits against the Tailoring Rule, and in court papers filed at approximately the same time as their comments in this rulemaking, they stated that the numbers of affected permits would be significantly higher than the numbers that they stated in their comments in this rulemaking. National Association of Manufacturers, et al., ``Petitioner's Motion for Partial Stay of EPA's Greenhouse Gas Regulations,'' Coalition for Responsible Regulation v. EPA, DC Cir. No. 091322 (and consolidated cases) at 45, 47.
Commenters also state that ``EPA's own actions further reveal the
flaw in its analysis.'' They note that EPA has proposed to issue the
SIP call on grounds that some of the SIPs apply PSD to only criteria pollutants and not
to pollutants other than criteria pollutants, and they state that these SIPs have applied to only criteria pollutants for ``many years.'' The commenters argue that EPA has never, up until now, issued a SIP call on the basis that the PSD provisions in the SIPs do not cover pollutants more broadly.
Commenters appear to infer from EPA's failure to have initiated a
SIP call for these states in the past an indication that EPA does not
have authority to do so. That inference is simply incorrect. An
agency's not taking certain action at one point in time does not
indicate a lack of authority to take that action, nor is the agency
required to explain its earlier inaction in order to justify subsequent
action. An agency may properly address an issue in stepbystep
fashion. See, e.g., Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d
455 (DC Cir. 1998), City of Las Vegas v. Lujan, 891 F.2d 927 (DC Cir.
1989). 75 FR at 31544. In addition, as discussed later in this
preamble, EPA has discretion in deciding whether, and when, to issue a
finding of substantial inadequacy. Moreover, commenters have pointed to
no statements by EPA indicating that SIPs that do not apply PSD to all
pollutants subject to regulation fully meet CAA requirements; on the
contrary, in the 2002 NSR Reform rule,\20\ EPA specifically required
SIP revisions to apply PSD to all pollutants subject to regulation.
\20\ ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Baseline Emissions
Determination, ActualtoFutureActual Methodology, Plantwide
Applicability Limitations, Clean Units, Pollution Control Projects Final Rule,'' 67 FR 80186 (December 31, 2002).
(II) Requirements of Tailoring Rule
Some industry commenters stated that EPA had no basis to issue a SIP call, and so should withdraw the proposal, because EPA was required to give states 3 years from the date the Tailoring Rule was published (June 3, 2010) to submit SIP revisions implementing PSD requirements for GHGemitting sources. The commenters' premise is that without the Tailoring Rule, PSD would not apply to GHGemitting sources, and the Tailoring Rule imposed the requirement that PSD applies to GHGemitting sources. As evidence for its premise that the Tailoring Rule imposed this requirement, the commenters point to the fact that EPA codified certain provisions in 40 CFR 51.166, including, for example, provisions concerning the definition of GHGs.
As a corollary to their premis
FOR FURTHER INFORMATION CONTACT
Ms. Lisa Sutton, Air Quality Policy Division, Office of Air Quality Planning and Standards (C50403), Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 5413450; fax number: (919) 5415509; email address: email@example.com.
For information related to a specific state, local, or tribal
permitting authority, please contact the appropriate EPA regional office:
Contact for regional office (person, mailing EPA regional office address, telephone number) Permitting authority I........................ Dave Conroy, Chief, Air Programs Branch, EPA Region Connecticut, Massachusetts, 1, 5 Post Office Square, Suite 100, Boston, MA Maine, New Hampshire, Rhode 021093912, (617) 9181661. Island, and Vermont. II....................... Raymond Werner, Chief, Air Programs Branch, EPA New Jersey, New York, Puerto Region 2, 290 Broadway, 25th Floor, New York, NY Rico, and Virgin Islands. 100071866, (212) 6373706.
III...................... Kathleen Cox, Chief, Permits and Technical District of Columbia, Delaware, Assessment Branch, EPA Region 3, 1650 Arch Street, Maryland, Pennsylvania, Philadelphia, PA 191032029, (215) 8142173. Virginia, and West Virginia. IV....................... Lynorae Benjamin, Chief, Regulatory Development Alabama, Florida, Georgia, Section, Air, Pesticides and Toxics Management Kentucky, Mississippi, North Division, EPA Region 4, Atlanta Federal Center, 61 Carolina, South Carolina, and Forsyth Street, SW., Atlanta, GA 303033104, (404) Tennessee. 5629033.
V........................ J. Elmer Bortzer, Chief, Air Programs Branch (AR Illinois, Indiana, Michigan, 18J), EPA Region 5, 77 West Jackson Boulevard, Minnesota, Ohio, and Chicago, IL 606043507, (312) 8861430. Wisconsin. VI....................... Jeff Robinson, Chief, Air Permits Section, EPA Arkansas, Louisiana, New Region 6, Fountain Place 12th Floor, Suite 1200, Mexico, Oklahoma, and Texas. 1445 Ross Avenue, Dallas, TX 752022733, (214) 665 6435.
VII...................... Mark Smith, Chief, Air Permitting and Compliance Iowa, Kansas, Missouri, and Branch, EPA Region 7, 901 North 5th Street, Kansas Nebraska. City, KS 66101, (913) 5517876.. VIII..................... Carl Daly, Unit Leader, Air Permitting, Monitoring & Colorado, Montana, North Modeling Unit, EPA Region 8, 1595 Wynkoop Street, Dakota, South Dakota, Utah, Denver, CO 802021129, (303) 3126416. and Wyoming. IX....................... Gerardo Rios, Chief, Permits Office, EPA Region 9, Arizona; California; Hawaii and 75 Hawthorne Street, San Francisco, CA 94105, (415) the Pacific Islands; Indian 9723974. Country within Region 9 and Navajo Nation; and Nevada. X........................ Nancy Helm, Manager, Federal and Delegated Air Alaska, Idaho, Oregon, and Programs Unit, EPA Region 10, 1200 Sixth Avenue, Washington. Suite 900, Seattle, WA 98101, (206) 5536908.