Federal Register: December 30, 2010 (Volume 75, Number 250)
DOCID: fr30de10-21 FR Doc 2010-32766
ENVIRONMENTAL PROTECTION AGENCY
Veterans Affairs Department
CFR Citation: 40 CFR Part 52
RIN ID: RIN 2060-AQ62
EPA ID: [EPA-HQ-OAR-2009-0517; FRL-9244-9]
NOTICE: Part V
DOCUMENT ACTION: Final Rule.
Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule
DATES: This action is effective on December 30, 2010.
This action is another in a series of steps EPA is taking to implement the Prevention of Significant Deterioration (PSD) program for greenhouse gas (GHG)emitting sources. EPA is finalizing its proposed rulemaking to narrow its previous approval of State Implementation Plan (SIP) PSD programs in 24 states that apply to GHGemitting sources. Specifically, EPA is withdrawing its previous approval of those programs to the extent they apply PSD to GHGemitting sources below the thresholds in the final Tailoring Rule, which EPA promulgated by Federal Register notice dated June 3, 2010. Having narrowed its prior approval, EPA asks that each affected state withdraw from EPA consideration the part of its SIP that is no longer approved. The states for whose SIPs EPA is narrowing approval are: Alabama, California, Colorado, Georgia, Indiana, Iowa, Louisiana, Maine, Maryland, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wisconsin.
Environmental Protection Agency
For information related to a specific state,
local, or tribal permitting authority, please contact the appropriate EPA regional office:
Contact for regional
EPA regional office mailing address, Permitting authority telephone number)
I.......................... Dave Conroy, Chief, Connecticut, Air Programs Branch, Massachusetts, EPA Region 1, 5 Post Maine, New Office Square, Suite Hampshire, Rhode 100, Boston, MA Island, and 021093912, (617) Vermont. 9181661.
II......................... Raymond Werner, New Jersey, New Chief, Air Programs York, Puerto Rico, Branch, EPA Region and Virgin Islands. 2, 290 Broadway,
25th Floor, New
York, NY 100071866,
III........................ Kathleen Anderson, District of Chief, Permits and Columbia, Delaware, Technical Assessment Maryland, Branch, EPA Region Pennsylvania, 3, 1650 Arch Street, Virginia, and West Philadelphia, PA Virginia. 191032029, (215)
IV......................... Lynorae Benjamin Alabama, Florida, Chief, Regulatory Georgia, Kentucky, Development Section, Mississippi, North Air, Pesticides and Carolina, South Toxics Management Carolina, and Division, EPA Region Tennessee. 4, Atlanta Federal
Center, 61 Forsyth
Street, SW, Atlanta,
GA 303033104, (404)
V.......................... J. Elmer Bortzer, Illinois, Indiana, Chief, Air Programs Michigan, Branch (AR18J), EPA Minnesota, Ohio, Region 5, 77 West and Wisconsin. Jackson Boulevard,
Chicago, IL 60604
3507, (312) 8861430.
VI......................... Jeff Robinson, Chief, Arkansas, Louisiana, Air Permits Section, New Mexico, EPA Region 6, Oklahoma, and Fountain Place 12th Texas. Floor, Suite 1200,
1445 Ross Avenue,
Dallas, TX 75202
2733, (214) 6656435.
VII........................ Mark Smith, Chief, Iowa, Kansas, Air Permitting and Missouri, and Compliance Branch, Nebraska. EPA Region 7, 901
North 5th Street,
Kansas City, KS
66101, (913) 551
VIII....................... Carl Daly, Unit Colorado, Montana, Leader, Air North Dakota, South Permitting, Dakota, Utah, and Monitoring & Wyoming. Modeling Unit, EPA
Region 8, 1595
Denver, CO 80202
1129, (303) 3126416.
IX......................... Gerardo Rios, Chief, Arizona, California, Permits Office, EPA Hawaii and the Region 9, 75 Pacific Islands, Hawthorne Street, Indian Country San Francisco, CA within Region 9 and 94105, (415) 972 Navajo Nation, and 3974. Nevada. X.......................... Nancy Helm, Manager, Alaska, Idaho, Federal and Oregon, and Delegated Air Washington. Programs Unit, EPA
Region 10, 1200
Sixth Avenue, Suite
900, Seattle, WA
98101, (206) 553
I. General Information
A. Does this action apply to me?
Entities potentially affected by this rule include states, local permitting authorities, and tribal authorities.
Entities potentially affected by this rule also include sources in
all industry groups, which have a direct obligation under the Clean Air
Act (CAA) to obtain a PSD permit for GHGs for projects that meet the
applicability thresholds set forth in the Tailoring Rule. The majority
of entities potentially affected by this action are expected to be in the following groups:
Industry Group NAICS \a\ Agriculture, fishing, and hunting...... 11.
Utilities (electric, natural gas, other 2211, 2212, 2213.
Manufacturing (food, beverages, 311, 312, 313, 314, 315, 316. tobacco, textiles, leather).
Wood product, paper manufacturing...... 321, 322.
Petroleum and coal products 32411, 32412, 32419. manufacturing.
Chemical manufacturing................. 3251, 3252, 3253, 3254, 3255, 3256, 3259.
Rubber product manufacturing........... 3261, 3262.
Miscellaneous chemical products........ 32552, 32592, 32591, 325182, 32551.
Nonmetallic mineral product 3271, 3272, 3273, 3274, 3279. manufacturing.
Primary and fabricated metal 3311, 3312, 3313, 3314, 3315, manufacturing. 3321, 3322, 3323, 3324, 3325, 3326, 3327, 3328, 3329. Machinery manufacturing................ 3331, 3332, 3333, 3334, 3335, 3336, 3339.
Computer and electronic products 3341, 3342, 3343, 3344, 3345, manufacturing. 4446.
Electrical equipment, appliance, and 3351, 3352, 3353, 3359. component manufacturing.
Transportation equipment manufacturing. 3361, 3362, 3363, 3364, 3365, 3366, 3366, 3369. Furniture and related product 3371, 3372, 3379.
Miscellaneous manufacturing............ 3391, 3399.
Waste management and remediation....... 5622, 5629.
Hospitals/Nursing and residential care 6221, 6231, 6232, 6233, 6239. facilities.
Personal and laundry services.......... 8122, 8123.
Residential/private households......... 8141.
NonResidential (Commercial)........... Not available. Codes only exist for private households, construction, and leasing/ sales industries. \a\ North American Industry Classification System.
B. How is this preamble organized?
The information presented in this preamble is organized as follows: Outline
I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
II. Overview of the Final Rule
III. Proposed Rule
IV. Final Rule
B. Legal Basis
C. Legal Mechanisms for EPA Action
V. Comments and Responses
A. Comments Regarding the Legal Mechanism for the Current Action
B. Comments on Potential Triggering of AntiBacksliding Provisions
C. Comments on Persisting Practical Difficulties at the State Level
D. Comments on Preferred Alternative Courses of Action VI. Effective Date
VII. Statutory and Executive Orders Reviews
A. Executive Order 12866Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132Federalism
F. Executive Order 13175Consultation and Coordination With Indian Tribal Governments
G. Executive Order 13045Protection of Children From Environmental Health and Safety Risks
H. Executive Order 13211Actions 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
L. Judicial Review
VIII. Statutory Language
II. Overview of the Final Rule
This action finalizes EPA's proposal to narrow the approval of SIPs that we included in what we call the proposed Tailoring Rule, ``Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule: Proposed Rule,'' 74 FR 55292, 55340 (October 27, 2009). EPA finalized the Tailoring Rule by Federal Register notice dated June 3, 2010, ``Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule: Final Rule, 75 FR 31,514. The Tailoring Rule, which followed a series of actions by EPA that will trigger PSD applicability to GHGemitting sources as of January 2, 2011, limits PSD applicability for GHG emissions to larger sources.
The Tailoring Rule accomplished this purpose by setting thresholds
at which GHG emissions become subject to regulation for PSD and Title V
purposes.\1\ Under the Tailoring Rule, a source becomes subject to PSD
requirements based on its GHG emissions only if it both emits GHGs at
or above the Tailoring Rule thresholds,\2\ which are calculated on a
carbon dioxide equivalent (CO
\1\ Only the PSD provisions are relevant for this action. \2\ The Tailoring Rule thresholds establish applicability of the PSD permitting program to GHGemitting sources only if they emit GHG in amounts above the 75,000/100,000 tpy CO
However, in proposing the Tailoring Rule, EPA recognized that even
after it finalized the Tailoring Rule, most of the SIPs with approved PSD programs woulduntil they were revised
continue to apply PSD at the statutory thresholds, even though the states would not have sufficient resources to implement the PSD program at those levels. Accordingly, the proposed Tailoring Rule included a proposal to narrow EPA's previous approval of SIPs such that the SIPs would only apply to GHG emissions at or above the higher thresholds established in the Tailoring Rule. When EPA finalized the Tailoring Rule, EPA did not, however, finalize that part of the proposal. Instead, EPA waited to collect more information from the states to determine whether such action was necessary, and, if so, for which states. EPA is now finalizing that part of the Tailoring Rule proposal in 24 states.
Thus, in this action, EPA is narrowing its previous approval of those approved PSD SIP programs that apply PSD to GHGemitting sources. Specifically, EPA is withdrawing their previous approvals of those programs to the extent the SIPs apply PSD to increases in GHG emissions from GHGemitting sources with emissions below the Tailoring Rule thresholds. The portions of the PSD programs regulating GHGs from GHG emitting sources with emissions at or above the Tailoring Rule thresholds remain approved.
The effect of EPA narrowing its approval in this manner is that the provisions of previously approved SIPs that apply PSD to GHG emissions increases from sources emitting GHGs below the Tailoring Rule thresholds will have the status of having been submitted by the state but not yet acted upon by EPA. EPA suggests that affected states take one of two actions to withdraw these nolongerapproved SIP PSD provisions. The state may submit a SIP revision for EPA's approval that incorporates the Tailoring Rule thresholds into the SIP. EPA will treat the approval of such a submission as removing these nolongerapproved provisions. Or, a state may submit a letter to EPA stating that it is withdrawing these provisions from EPA's consideration. For any state that takes neither of these actions, EPA intends to propose to disapprove those provisions. The disapproval, if finalized, will not result in the need to resubmit another SIP revision, sanctions, or a federal implementation plan (FIP). This is because the provisions of the SIP that would be disapproved are not required for any purpose under the CAA or necessary to meet any CAA standard.
This action ensures that the federal law applicable in the affected states does not require PSD permitting for GHG emissions below the final Tailoring Rule thresholds as of January 2, 2011. Once the states take action to amend their state laws, then sources in the affected states will not be subject to federal or state requirements to obtain permits at the lower 100/250 tpy level. Most, if not all, of the affected states have already begun taking steps toward completing these changes at the state level, and plan to complete changes to their state law and make those changes effective by January 2, 2011. In general, these states are now in the process of (or have recently completed) incorporating the state law changes into SIP revisions to submit to EPA for approval. The combination of this rule and state actions will, in the affected states, eliminate, or at least greatly minimize, the time during which GHGemitting sources that are below the Tailoring Rule thresholds will be subject to PSD in the state under either state or federal law while SIP revisions are being developed, submitted, and approved.
The states for whose SIPs EPA is narrowing approval are: Alabama,
California,\3\ Colorado, Georgia, Indiana, Iowa, Louisiana, Maine,
Maryland, Mississippi, Missouri, New Hampshire, New Mexico,\4\ North
Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wisconsin.
\3\ Specifically, EPA is narrowing its approval of the SIPs for 3 districts within California: Mendocino County, North Coast Unified, and Northern Sonoma County.
\4\ EPA is narrowing its approval of both the SIP for New Mexico, as well as the SIP for Albuquerque.
III. Proposed Rule
We assume familiarity here with the statutory and regulatory background discussed in the preambles for the Tailoring Rule proposal and final action, and will only briefly summarize that background here.
Under the CAA PSD program, major stationary sources must obtain a permit prior to undertaking construction or modification projects that would result in specified amounts of new or increased emissions of air pollutants that are subject to regulation under other provisions of the CAA. CAA sections 165(a)(1), 169(1). The permit must, among other things, include emission limitations associated with the best available control technology (BACT). CAA section 165(a)(4).
In recent months, EPA completed four distinct actions related to
greenhouse gases under the Clean Air Act. These actions include, as
they are commonly called, the ``Endangerment Finding'' and ``Cause or
Contribute Finding,'' which we issued in a single final action,\5\ the
``Johnson Memo Reconsideration (also called the ``Timing Decision''),''
\6\ the ``LightDuty Vehicle Rule (LDVR),'' \7\ and the ``Tailoring
Rule.'' \8\ In the Endangerment Finding, which is governed by CAA Sec.
202(a), the Administrator exercised her judgment, based on an
exhaustive review and analysis of the science, to conclude that ``six
greenhouse gases taken in combination endanger both the public health
and the public welfare of current and future generations.'' 74 FR at
66,496. The Administrator also found ``that the combined emissions of
these greenhouse gases from new motor vehicles and new motor vehicle
engines contribute to the greenhouse gas air pollution that endangers
public health and welfare under CAA section 202(a).'' Id. The
Endangerment Finding led directly to promulgation of the Vehicle Rule,
also governed by CAA Sec. 202(a), in which EPA set standards for the
emission of greenhouse gases for new motor vehicles built for model
years 20122016. 75 FR 25,324. The other two actions, the Johnson Memo
Reconsideration and the Tailoring Rule, governed by the PSD and Title V
provisions in the CAA, were issued to address the automatic statutory
triggering of these programs for greenhouse gases due to the Vehicle
Rule establishing the first controls for greenhouse gases under the
Act. More specifically, the Johnson Memo Reconsideration provided EPA's
interpretation of a 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. 75 FR 17,004. The Tailoring Rule established a series of steps by which PSD and Title V permit requirements for greenhouse gases are phased in, starting with the largest sources of greenhouse gas emissions. 75 FR 31,514. In addition, by Federal Register notice dated September 2, 2010, EPA proposed to find that the SIPs for 13 states with approved PSD programs are substantially inadequate to meet CAA requirements because they fail to apply their PSD program to GHG emitting sources, and EPA proposed to issue a ``SIP call'' under CAA section 110(k)(5) for those states that would require submission of a corrective SIP revision. 75 FR 53,892. At the same time, EPA proposed a FIP, under CAA Sec. 110(c), for those states. 75 FR 53,883. \5\ ``Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 66,496 (December 15, 2009).
\6\ ``Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.'' 75 FR 17,004 (April 2, 2010). This action finalizes EPA's response to a petition for reconsideration of ``EPA's Interpretation of Regulations that Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program'' (commonly referred to as the ``Johnson Memo''), December 18, 2008.
\7\ ``LightDuty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25,324 (May 7, 2010).
\8\ ``Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31,514 (June 3, 2010).
In the proposed Tailoring Rule, EPA proposed a major stationary
source threshold of 25,000 tpy for GHG on a CO
EPA also recognized that the solution to these problems lay in the form of SIP revisions that EPA would approve to raise the thresholds in approved state PSD permitting programs to conform to the Tailoring Rule (or, in the alternative, in the form of increased state resources).
Until the states could develop and submit for approval such SIP revisions, and EPA could approve them, EPA proposed to narrow its approval of the existing EPAapproved SIPs that would regulate GHG emissions at levels below the Tailoring Rule thresholds. Specifically, EPA proposed to narrow its approval of the permitting threshold provisions, including the significance threshold provisions in the SIPs, to the extent those provisions required PSD permits for sources whose GHG emissions fall below the proposed Tailoring Rule thresholds. EPA based its proposed narrowing of approval on the fact that while the SIPs would require PSD to apply at the 100/250 tpy levels (and at the any mass increase level for modifications), the states do not have the resources to implement the program at that level, and thus the SIPs were inconsistent with CAA section 110(a)(2)(E)(i), which requires that states provide necessary assurances that they have adequate funding and personnel to implement their SIPs. EPA proposed to rely, as the legal mechanisms for the proposed narrowing of approval, on CAA section 301(a), which provides the EPA Administrator with general regulatory authority to issue regulations necessary to carry out her CAA functions; and on the authority of an agency to reconsider its actions inherent in the Administrative Procedures Act (APA) section 553. In the alternative, EPA proposed to rely on the error correction provision of CAA section 110(k)(6). EPA did not propose to issue a SIP call under CAA section 110(k)(5) for these SIP provisions.
In the final Tailoring Rule, EPA established a schedule to phasein
threshold levels of GHG emissions below which a source will not be
required to obtain a PSD permit.\9\ EPA established the initial levels
(which are higher than those in the proposed Tailoring Rule) in the
first two steps of the phasein schedule, committed the agency to take
future steps addressing smaller sources, and excluded the smallest
sources from PSD permitting for GHG emissions until at least April 30, 2016.
\9\ The final Tailoring Rule also established a threshold of 100,000 tpy CO
In addition, in the final Tailoring Rule, EPA chose revision of the
definition of the term ``subject to regulation'' as the mechanism to
revise the PSD thresholds for GHG. Under the PSD program, a major
stationary source is subject to PSD. A major stationary source is
defined as a source that emits 100/250 tpy on a mass basis of a
regulated NSR pollutant, and a regulated NSR pollutant, in turn, is
defined as, among other things, a pollutant that is subject to
regulation under the CAA. In the final Tailoring Rule, EPA defined the
term ``subject to regulation'' so that GHG emissions from sources at or
above specified thresholds (depending on the circumstances, 75,000 and/
or 100,000 tpy on a CO
\10\ Unlike the proposed Tailoring Rule, the final Tailoring Rule did not set significance levels for GHG emissions.
Some states advised EPA that it is likely they would be able to implement the Tailoring Rule thresholds by interpreting the term ``subject to regulation'' in their SIPs. A state's implementation of the Tailoring Rule in this manner, or in any other manner, prior to January 2, 2011, obviates the need for EPA to narrow its approval of the state's SIP. Thus, in the final Tailoring Rule, EPA delayed final action on its proposal to narrow approval for any SIPapproved PSD programs. EPA deferred making any decision regarding whether to narrow its approval of any SIPs until after learning the process and timeline for states to implement the Tailoring Rule. Based on information it had received, EPA expected that many states would quickly adopt the interpretation of the term ``subject to regulation'' used in the final Tailoring Rule, and thereby obviate the need for EPA to narrow its approval or take any other action with respect to the SIP. Thus, EPA asked states to submit informationin the form of letters due within 60 days of publication of the Tailoring Rule (which we refer to as the 60day letters)that would help EPA determine whether it needed to narrow its approval of any SIPs.
Almost all states submitted 60day letters. The letters, in conjunction with other information EPA received, indicate that the states, localities, and other jurisdictions may be divided into three categories. The first, which includes 7 states, 35 subsections of states, the District of Columbia, American Samoa, Guam, Puerto Rico, the U.S. Virgin Islands, and Indian Territory, does not have an approved SIP PSD permitting program. Instead, federal requirements apply. Thus, in these jurisdictions, the thresholds in the Tailoring Rule will apply without further action.
The second category includes the states (or districts within
states) whose SIPs do not appear to apply the PSD program to GHG
emitting sources. As a result, EPA proposed a SIP call and FIP for
these states by notice dated September 2, 2010. 75 FR 53892. Based on
the 60day letters, letters EPA received in response to the proposed SIP call and FIP (which we refer to as
the 30day letters), and additional information EPA has received, EPA finalized (at about the same time as this action) a SIP call in 13 states, including 4 districts within states.
The remaining 30 states and 6 districts within states, the third category, have approved SIPs that apply their PSD program to GHG emitting sources. In those states, absent further action, sources emitting GHGs at or above the 100/250 tpy levels will be subject to PSD requirements as of January 2, 2011, if they construct or modify. Of these localities, 6 states and 4 districts within states have indicated that they would interpret their SIPs to regulate GHG emissions only above the Tailoring Rule thresholds, and no further action was needed to do so. EPA approved a SIP for 1 stateNew Yorkfor the first time in November 2010, and that original approval itself was limited to exclude the part of the PSD program that applies to GHG emissions below the Tailoring Rule thresholds. All or part of twentyfour states, including 4 districts, indicated that they would need to submit SIP revisions to EPA in order to incorporate the Tailoring Rule thresholds. Some of these states indicated, however, that they would not be able to complete these changes prior to January 2, 2011. Some states have completed their SIP revisions and submitted them to EPA, and EPA expects to take final action on them promptly. EPA has only signed SIP revision approvals for two states, Alabama and Mississippi, though neither of these approvals has yet been published as of the signing of this rule. These statesincluding those that have indicated that they would submit SIP revisions to EPA to incorporate the Tailoring Rule thresholds, but for which EPA has not approved such SIP revision as of the date of this ruleare included in this rule.
It should be noted that this rule focuses on eliminating the PSD obligations under federal law for sources below the Tailoring Rule thresholds in states in the third category, those with approved SIPs that do not incorporate the Tailoring Rule. The sources in those states also have permitting obligations under state law. EPA has strongly encouraged states to eliminate the state law obligations by revising their state law as promptly as possible. Such a revision to state law can eliminate those sources' state obligations, even before the state is able to process the revision as a SIP revision and submit it to EPA for approval. In almost all cases, states are proceeding to revise their state law to reflect the Tailoring Rule thresholds and will have done so by January 2, 2011, or very soon thereafter.
In their 60day letters, none of the states indicated either that
they intended to regulate GHGemitting sources at a level below the
Tailoring Rule thresholds, or that they could or would increase their permitting resources to do so.
IV. Final Rule
EPA is taking final action to narrow its approval of the SIPs for certain states. In the final Tailoring Rule, EPA established levels of GHG emissions below which PSD provisions do not apply. However, some SIPs currently apply the PSD program to a source that emits GHGs below the Tailoring Rule thresholds, at levels at which, under the Tailoring Rule, GHGs are not a pollutant ``subject to regulation'' under the CAA, so that the emitting source is not a major stationary source subject to PSD on account of its GHG emissions. Thus, EPA is now narrowing its approval of some approved SIPs so that the PSD programs under those SIPs are approved to apply to GHGemitting sources only if those sources emit GHGs at or above Tailoring Rule thresholds. EPA is accomplishing this narrowing by withdrawing its previous approval of those PSD programs to the extent they apply to GHGemitting sources that emit below the Tailoring Rule thresholds.
Those provisions of SIPs from which EPA is withdrawing its approval will be treated as submitted by the state for approval and not yet acted upon by EPA. If a state submits a SIP revision for EPA's approval that incorporates the Tailoring Rule thresholds into the SIP, EPA will treat the approval of the submission as removing these nolonger approved provisions. We note that once SIP revisions incorporating the Tailoring Rule thresholds are approved after the issuance of this rule, they will supersede the changes made in this rule. That is, this rule amends the regulatory language in the Code of Federal Regulations (CFR) approving each of the relevant SIPs. When EPA approves a SIP revision, EPA will remove from the CFR the regulatory language added by this rule.
Alternatively, EPA suggests that the affected states may withdraw those provisions from EPA's consideration through a letter to the EPA Regional Administrator. EPA offers the following as model language that the state should feel free to use, but is not required to use:
In its final rule entitled ``Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans'' and published on [DATE OF PUBLICATION IN THE FEDERAL REGISTER], EPA amended the Code of Federal Regulations at [LOCATION OF CFR AMENDMENT RELEVANT TO STATE/DISTRICT] and withdrew EPA's approval of that portion of [STATE]'s SIP that would require sources to seek PSD permitting for emissions of GHGs in amounts below the thresholds specified in the Tailoring Rule, 74 FR 55292 (October 27, 2009). [STATE] now acts to withdraw from EPA's consideration that portion of [STATE]'s SIP from which EPA withdrew its approval in that action. These provisions are no longer intended for inclusion in the SIP, and are no longer before EPA for its approval or disapproval.
If a state does not withdraw the SIP provisions for which EPA is rescinding approval, and does not submit a SIP revision incorporating the Tailoring Rule thresholds that would supercede this rule, EPA intends to propose to disapprove the relevant provisions in the near future. Any disapproval of such SIP provisionsagain, those applying PSD to GHGemitting sources that emit GHGs below the Tailoring Rule thresholdwill not, if finalized, result in the need to resubmit another SIP revision, in sanctions, or in a FIP. This is because the relevant provisions are not necessary to meet any applicable CAA requirement. See CAA sections 110(k)(3) (requirements for SIP disapproval), 179(a)(2) (sanctions).
In the proposed Tailoring Rule, EPA proposed to narrow its approval
for all 50 states, as well as the District of Columbia, Guam, Puerto
Rico, the U.S. Virgin Islands, and American Samoa. EPA now finalizes
this narrowing of approval for only the SIPs with PSD programs that
will apply to GHG emissions as of January 2, 2011, and for which the
states have not either said that they interpret their SIPs to
incorporate the Tailoring Rule thresholds for GHG emissions without the
need for further action, or completed taking any further action
necessary to incorporate the Tailoring Rule thresholds. This rule does
not include final action on the proposal to narrow EPA's approval of
SIPs for states that do not have approved PSD SIP programs (the first
category previously described), and states that have approved PSD SIP
programs that do not apply to GHGs (the second category previously
described). This rule also does not take final action on the proposal
to narrow EPA's approval of SIPs for states that have PSD SIP programs
that cover GHG emissions, and that have already incorporated the
Tailoring Rule thresholds via interpretation, SIP revision, or any other mechanism. The language being used
for this final narrowing rule reflects changes from the language proposed in the Tailoring Rule in order to clarify and reflect the decisions about permitting thresholds reached in the final Tailoring Rule.
The states for whom EPA is narrowing its approval of the SIP PSD program in this action include: Alabama, California, Colorado, Georgia, Indiana, Iowa, Louisiana, Maine, Maryland, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, and Wisconsin.
B. Legal Basis
EPA is narrowing its previous approval for each of the affected SIPs because EPA erred when it approved each SIP's PSD program. In those approvals, EPA failed to account for an important flaw in the SIP. As a result, EPA is rescinding its previous approval for the part of the SIP that is flawed, and EPA is leaving in place its previous approval for the rest of the SIP. The flaw is that the applicability provisions of the PSD program (which determined the pollutants to which PSD permitting applies) were phrased so broadly that they could, under certain circumstances, sweep in more sources than the program could accommodate in light of the resources that, under the SIPin accordance with what we refer to as the ``state assurances'' provision under CAA Sec. 110(a)(2)(E)(i)were available or for which a plan was in place to acquire. The part of PSD applicability that is broader than what the state assurances covered is the part that exceeds EPA requirements for PSD applicability. The following section discusses this basis in more detail, beginning with the PSD applicability provisions; then the state assurances provisions; and then how the two provisions, read together, gave rise to the flaws in the SIPs. 1. PSD Applicability
Each of the states subject to this rule has an approved PSD SIP
program that applies to sources of pollutants subject to regulation
under the CAA. Some states' programs meet EPA's PSD requirements as
they read prior to promulgation of the 2002 NSR rulemaking, which we
refer to as the NSR Reform rule.\11\ These preReform SIPs, include a
PSD applicability provision that provides that PSD applies to ``any air
pollutant subject to regulation.'' 40 CFR 51.166(b)(1)(i) (2001). Other
states subject to this rule have an approved PSD program that includes
the NSR Reform rule. The Reform requirements, replaced the term ``any
air pollutant subject to regulation'' with the term ``regulated NSR
pollutant,'' 40 CFR 51.166(b)(1)(i), and defined that latter term to
include pollutants regulated under specified provisions of the CAA as
well as ``any pollutant that is otherwise subject to regulation under
[the CAA].'' 40 CFR 51.166(b)(49)(iv). This quoted provision is similar
to the preReform provision, as both include the phrase ``subject to
regulation'' in reference to the types of air pollutants that will be
subject to the PSD program. Thus, each of the states subject to this
rule has an approved PSD programwhether preReform or Reformthat
applies to any air pollutant that is ``subject to regulation'' under the CAA.
\11\ ``Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Baseline Emissions Determination, ActualtoFutureActuals Methodology, Plantwide Applicability Limitations, Clean Units, Pollution Control
Projects,'' Final Rule, 67 FR 10816 (December 2, 2002).
These applicability provisions mean that under federal law, in each of these SIPs, PSD will expand to cover additional sources that emit a pollutant different than the ones already covered under the PSD program as soon as EPA promulgates a rule regulating that pollutant under any other provision of the CAA. Depending on the pollutant and the number and size of sources that emit it, these applicability provisions could result in a significant and rapid expansion of the PSD program. This is precisely what is happening at present, now that EPA has promulgated the LDVR, to take effect on January 2, 2011, at which time GHGs will become subject to regulation under CAA section 202(a).
Importantly, the states affected by this action, while including in their SIPs a PSD applicability provision that applies PSD to any pollutant ``subject to regulation,'' generally do not interpret their applicability provision, or any other provision in their SIPs, to incorporate limits on PSD applicability with respect to a new pollutant and the SIPs do not contain any other mechanism that would allow the State to interpret applicability more narrowly. As a result, the affected states' applicability provisions include no way to limit the speed or extent of the expansion a PSD program might be required to undergo to regulate new pollutants.
The case of GHGs has highlighted the potential scale of a PSD program for a new pollutant under such openended provisions. As described in the final Tailoring Rule, EPA promulgated the LDVR, which is the rule that, upon January 2, 2011, when it takes effect, subjects GHGs to regulation. The LDVR identifies GHGs as the group of six air pollutants made up of carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons, and perfluorocarbons. 75 FR 31514, 31519 (June 3, 2010) (Tailoring Rule discussion); 75 FR 25324 (May 7, 2010) (LDVR). Accordingly, the SIPs affected by this action will, as of January 2, 2011, treat GHGs as a pollutant ``subject to regulation'' and therefore apply PSD to GHGemitting sources. As previously discussed, these SIPs will apply PSD to new GHGemitting sources at the 100/250 tpy levels and to modified GHGemitting sources at the any massincrease levels. None of these SIPs, as currently approved, permits the interpretation of the PSD applicability more narrowly, to apply to only GHGemitting sources at or above the Tailoring Rule thresholds. In contrast, as previously noted, several other states are able to interpret their SIPs more narrowly and, as a result, are not subject to this action.
The scale of the administrative program needed to effectively
permit all sources emitting GHGs at the 100/250 tpy levels has
highlighted the unconstrained nature of the SIPs' applicability
provisions. EPA has recognized that a PSD program regulating GHGs at
the 100/250 tpy levels is administratively unmanageable and creates
absurd results that were not intended by Congress when it passed the
CAA. Thus, in the Tailoring Rule, EPA phased in GHG PSD applicability,
so that at the outset PSD applies to GHGemitting sources only if they
also emit GHG in amounts above the 75,000/100,000 tpy CO
sources and to much smaller sourcesthan EPA's regulations do. \12\ In its first phase, starting January 2, 2011, PSD requirements for GHGs apply to sources that are required to seek a PSD permit for nonGHG pollutants, and that also increase emissions of GHG by at least 75,000 tpy CO
We note that there is nothing inherently problematic about a SIP imposing PSD applicability, or applying other control requirements, as broadly as a state might choose. SIPs may lawfully do so and EPA may lawfully approve them in accordance with the provisions of section 110(a) of the CAA. Similarly, there is nothing inherently problematic with a SIP failing to include any measures to limit the scope of its control requirements. Even so, the SIP must provide for adequate resources, and must do so on the appropriate schedule, as discussed next.
2. State Assurances of Adequate Resources
Each of the states subject to this rule was also required to include in its SIP adequate state ``assurances,'' in accordance with CAA section 110(a)(2)(E)(i). This provision requires the SIP to ``provide * * * necessary assurances that the State * * * will have adequate personnel, funding, and authority under State * * * law to carry out such implementation plan* * *.'' EPA has implemented this requirement in 40 CFR 51.280, which provides,
Each plan must include a description of the resources available
to the State and local agencies at the date of submission of the
plan and any additional resources needed to carry out the plan
during the 5year period following its submission. The description
must include projections of the extent to which resources will be acquired at 1, 3, and 5year intervals.
These CAA and regulatory requirements concerning assurances apply to the SIP as a whole, including the PSD program. Therefore, at the time that the state submitted the PSD provisions of the SIP for EPA approval, the SIP was required to include assurances that adequate resources would be available to implement the SIP in its entirety, including the PSD program.
As previously noted, the affected SIPs included expansive PSD
applicability provisions for newly regulated pollutants, without a
means to limit that applicability. Under these circumstances, state
assurances are needed to assure adequate resources in the event of an
expansion of the PSD program to new pollutants, even when this would
require a rapid and sizeable expansion of the resources dedicated to
the state PSD program, whether due to the large number of sources
emitting the new pollutant or any other reason. EPA has the authority
to define, under CAA section 110(a)(2)(E)(i), what assurances are
``necessary'' so that the state will have ``adequate'' resources. To be
sure, EPA does not read the assurances requirement to require that the
state should somehow hold in reserve large amounts of resources to
cover the possibility that the PSD program would undergo such a large
and rapid expansion. However, EPA does read the requirement to require
that the state have a plan for acquiring the requisite additional
amount of resources in the case of an expansion in PSD applicability.
Moreover, that plan should include an implementation schedule that
would be consistent with the timing of expansion in PSD applicability.
PSD expansion may occur quite rapidly because PSD requirements apply
immediately once they are triggered by subjecting a pollutant to
regulation. This is because of the CAA requirement that stationary
sources may not construct or modify unless they first have acquired a
permit. CAA section 165(a). That is, as soon as a pollutant is subject to regulationas will occur for GHGs on January 2, 2011the
pollutantemitting sources to which PSD then applies cannot lawfully undertake construction or modification projects without first procuring a PSD permit.
It is clear, however, that none of the SIPs affected by this action
include such a plan among their assurances. In the proposed Tailoring
Rule, EPA stated that at the time that the LDVR triggers PSD
applicability, if it triggers such applicability at the 100/250 tpy
level, then far greater numbers of sources will require permitting than
currently do. As a result, EPA added, the administrative burdens
associated with permitting small sources for affected state and local
permitting authorities would overwhelm the authorities. For each state,
EPA proposed to rescind approval of the part of the SIP that applies
PSD to sources below the Tailoring Rule thresholds, unless the state
demonstrated that it had adequate resources to permit at the lower
levels. During the comment period on this proposal, no authority
contested this understanding of the facts, none stated that they could
administer PSD at the 100/250 tpy levels, and none contested the
proposal on grounds that they have adequate resources. In the final
Tailoring Rule, EPA refined, on the basis of comments, the precise
extent of the administrative burden, but confirmed that the burden was
overwhelming and that states lacked adequate resources. In the final
Tailoring Rule, EPA requested that states submit letters within 60 days
of publication of the rule describing how they intended to implement
PSD for GHGemitting sources.\13\ In those letters, none of the states
claimed they could, or intended to, implement the Tailoring Rule at the
statutory levels. From all this, it is clear that none of the states
had included in their state assurances an adequate plan to acquire
resources to administer the PSD program for their GHGemitting sources at the 100/250 tpy level.
\13\ The 60day letters are available at http://www.epa.gov/NSR/ 2010letters.html.
It must be emphasized that there is nothing inherently problematic with a SIP whose state assurances do not include the previously described plan to acquire additional resources. Only SIPs that lack any constraints to limit PSD applicability for new pollutants to match their resources must include such a plan.
3. Flaw in SIP
Based on the previous analysis, it is clear that the SIPs subject to this action are flawed. They each are structured in a manner that may impose PSD applicability on new pollutants in an unconstrained manner, and yet they do not have a plan for acquiring resources to adequately administer any large new components of the PSD program, and to do so on the same schedule that sources may become subject to PSD. As previously explained, the SIPs' unconstrained applicability is not by itself a flaw. The flaw is the combination of that unconstrained applicability and the failure of the SIP to plan for adequate resources for that applicability, and do so on the appropriate timetable. In short, the SIPs' PSD applicability provisions and their state assurances are mismatched and therefore the SIP is flawed. As previously discussed, EPA's recently promulgated GHG rules have highlighted this flaw.
EPA notes that since the enactment of the PSD provisions, EPA has
periodically subjected pollutants to control for the first time,
thereby triggering PSD applicability. At the time the affected SIPs
were submitted and approved, this structural flaw could have been
recognized. That is, it could have been recognized that (i) the PSD
applicability provisions were essentially unconstrained, but that the
resources the state assured would be available were constrained; and
(ii) at some point in time, a pollutant could become newly regulated
that would expand PSD applicability to a point that would require
resources beyond what the state assured would be available. It bears
reiterating that EPA has discretion to interpret the CAA's SIP requirements,
including what state assurances are required. In EPA's view, the breadth of the affected SIPs' provisions concerning PSD applicability, combined with the limited state assurances, constitutes a flaw. C. Legal Mechanisms for EPA Action
Because the SIPs were flawed, EPA approval of them was in error.
Two mechanisms are available for addressing that error: The error
correction mechanism provided under CAA section 110(k)(6), 42 U.S.C.
section 7410(k)(6), or EPA's inherent general authority to reconsider
its own actions under CAA section 301(a), 42 U.S.C. section 7601(a),
read in conjunction with CAA section 110(k) and other statutory
provisions, and case law holding that an agency has inherent authority to reconsider its prior actions.
1. Error Correction Under CAA Section 110(k)(6)
CAA section 110(k)(6) provides as follows:
Whenever the Administrator determines that the Administrator's
action approving, disapproving, or promulgating any plan or plan
revision (or part thereof), area designation, redesignation,
classification, or reclassification was in error, the Administrator
may in the same manner as the approval, disapproval, or promulgation
revise such action as appropriate without requiring any further
submission from the State. Such determination and the basis thereof shall be provided to the State and public.
The key provisions are that the Administrator has the authority to ``determine [ ]'' when a SIP approval was ``in error,'' and when she does so, she may then revise the SIP approval ``as appropriate,'' in the same manner as the approval, and without requiring any further submission from the state. With this action, EPA is determining that its action approving the PSD SIP provisions was ``in error'' due to the mismatch, previously discussed, between the PSD applicability provisions and the state assurances. EPA is further determining that the appropriate action EPA can takein light of EPA's proposal as part of the proposed Tailoring Ruleto revise that prior action is to rescind approval of the PSD program to the extent it applies PSD to GHGemitting sources below the Tailoring Rule threshold. Thus, EPA is narrowing its approval of the PSD programs as indicated. EPA may consider further action in the future.
a. Type of Error
These determinations are authorized under the CAA. First, approval of the SIPs in light of the mismatch constitutes an ``error'' within the meaning of CAA section 110(k)(6). As previously quoted, CAA section 110(k)(6) provides EPA with the authority to correct its own ``error,'' but nowhere does this provision or any other provision in the CAA define what qualifies as ``error.'' Thus, the term should be given its plain language, everyday meaning. Webster's II Dictionary defines an ``error'' as: ``(1) an act, assertion, or belief that unintentionally deviates from what is correct, right or true, (2) the state of having false knowledge . . . (4) a mistake . . .'' Webster's II New Riverside University Dictionary 442 (Houghton Mifflin Co. 1988). Similarly, the Oxford American College Dictionary 467(2d ed. 2007) defines ``error'' as ``a mistake'' or ``the state or condition of being wrong in conduct or judgment.'' These definitions are broad, and include all unintentional, incorrect or wrong actions or mistakes.
The legislative history of CAA section 110(k)(6) is silent
regarding the definition of error, but the timing of the enactment of
the provision suggests a broad interpretation. The provision was
enacted shortly after the Third Circuit decision in Concerned Citizens
of Bridesburg v. U.S. EPA, 836 F.2d 777 (1987). In Bridesburg, the
court adopted a narrow interpretation of EPA's authority to
unilaterally correct errors. The court stated that such authority was
limited to typographical and other similar errors, and stated that any
other change to a SIP must be accomplished through a SIP revision. Id.
at 786. In Bridesburg, EPA determined that it lacked authority to
include odor regulations as part of a SIP unless the odor regulations
had a significant relationship to achieving a NAAQS, and so directly
acted to remove 13yearold odor provisions from the Pennsylvania SIP.
Id. at 77980. EPA found the previous approval of the provisions to
have been an inadvertent error, and so used its ``inherent authority to
correct an inadvertent mistake'' to withdraw its prior approval of the
odor regulations without seeking approval of the change from
Pennsylvania. Id. at 77980, 785. After noting that Congress had not
contemplated the need for revision on the grounds cited by EPA, Id. at
780, the court found that EPA's ``inherent authority to correct an inadvertent mistake'' was limited to corrections such as
``typographical errors,'' and that instead EPA was required to use the SIP revision process to remove the odor provision from the SIP. Id. at 78586.
When the court made its determination in Bridesburg in 1987, there was no provision explicitly addressing EPA's error correction authority under the CAA. In 1990, Congress passed CAA section 110(k)(6), apparently for the purpose of overturning the Bridesburg opinion. This is apparent because CAA section 110(k)(6) both (i) authorizes EPA to correct SIP approvals and other actions that were ``in error,'' which, as previously noted, broadly covers any mistake, and thereby contrasts with the holding in Bridesburg that EPA's presection 110(k)(6) authority was limited to correction of typographical or similar mistakes; and (ii) provides that the error correction need not be accomplished via the SIP revision or SIP call process, which contrasts with the holding of Bridesburg requiring a SIP revision. Because Congress apparently intended CAA section 110(k)(6) to overturn Bridesburg, the definition of ``error'' in that provision should be sufficiently broad to encompass the error that EPA asserted it made in its approval action at issue in Bridesburg, which goes well beyond typographical or other similar mistakes.
EPA has used CAA section 110(k)(6) in the past to correct errors of a nontechnical nature. For example, EPA has used CAA section 110(k)(6) as authority to make substantive corrections to remove a variety of provisions from federally approved SIPs that are not related to the attainment or maintenance of NAAQS or any other CAA requirement. See, e.g., ``Approval and Promulgation of Implementation Plans; Kentucky: Approval of Revisions to the State Implementation Plan,'' 75 FR 2440 (Jan. 15, 2010) (correcting the SIP by removing a provision, approved in 1982, used to address hazardous or toxic air pollutants); ``Approval and Promulgation of Implementation Plans; New York,'' 73 FR 21,546 (April 22, 2008) (issuing a direct final rule to correct a prior SIP correction from 1998 that removed general duties from the SIP but neglected to remove a reference to ``odor'' in the definition of ``air contaminant or air pollutant''); ``Approval and Promulgation of Implementation Plans; New York,'' 63 FR 65557 (Nov. 27, 1998) (issuing direct final rule to correct SIP by removing a general duty ``nuisance provision'' that had been approved in 1984); ``Correction of Implementation Plans; American Samoa, Arizona, California, Hawaii, and Nevada State Implementation Plans,'' 63 FR 34,641 (June 27, 1997) (correcting five SIPs by deleting a variety of administrative provisions concerning variances, hearing board procedures, and fees that had been approved during the 1970s).
EPA's approval of the PSD SIP provisions, in light of the mismatch between those provisions and the state assurances, was ``in error'' within the meaning of CAA section 110(k)(6). Under the familiar Chevron twostep framework for interpreting administrative statutes, an agency must, under Chevron step 1, determine whether ``Congress has directly spoken to the precise question at issue.'' If so, ``the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'' However, under Chevron step 2, if ``the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.'' Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 84243 (1984).
As previously discussed, the PSD SIPs were flawed due to the mismatch between the PSD applicability provisions and the state assurances. EPA's action approving the PSD SIPs in the face of that flaw was ``in error'' under CAA section 110(k)(6) in accordance with Chevron step 1. As previously discussed, ``error'' should be defined broadly to include any mistake, and approval of a flawed SIP is a mistake.
Even if the term ``error'' is not considered unambiguously to encompass the mistake that EPA made in approving the PSD SIPs under Chevron step 1, and instead is considered ambiguous on this question, then under Chevron step 2 EPA has sufficient discretion to determine that its approval action meets the definition of ``error.'' That is, under CAA section 110(k)(6), both the breadth of the term ``error'' and the authorization for EPA to ``determine[ ]''which is a directive that is inherently discretionarywhen it made an error, point towards EPA having sufficient discretion to identify the mismatch in the SIPs as a flaw and to identify its action in approving the PSD SIPs in the face of that mismatch as an error under that provision.
b. Narrowing of Approval
Under CAA section 110(k)(6), once EPA determines that its action in approving the PSD SIPs was in error, EPA has the authority to correct the error in an ``appropriate'' manner, and through the same process as the original approval, but without requiring any further state submission. The term ``appropriate'' is openended, and therefore confers broad discretion upon EPA to fashion a reasonable type of correction. More generally, CAA section 110(k)(6) authorizes EPA to ``determine[ ]'' that its action was in error, and does not direct or constrain that determination in any manner. That is, the provision does not identify any factors that EPA must, or may not, consider in making the determination. This further indicates that this provision confers broad discretion upon EPA.
EPA's action corrects the error by rescinding EPA's approval of the PSD threshold provisions to the extent they apply PSD requirements to sources of GHG emissions below the final Tailoring Rule thresholds. Correcting the error in this fashion is appropriate because it narrows the approval to the PSD requirements to the extent they apply to GHG emitting sources at or above the final Tailoring Rule thresholds. This approach (i) renders the PSD applicability provisions consistent with EPA regulations and (ii) solves the mismatch previously described by assuring that SIP PSD applicability to GHG sources is consistent with EPA's interpretation of the scope of the state assurances of adequate resources for PSD administration.
Correcting the error in this fashionnarrowing the approval of SIPsis also consistent with the approach that the affected states are taking to administer PSD to GHGemitting sources. The states have advised EPA that they are proceeding to develop SIP revisions to implement the Tailoring Rule and thereby narrow their SIP PSD programs to GHGemitting sources at or above the Tailoring Rule thresholds. EPA's record in the Tailoring Rule indicates that the states should have adequate resources to implement their PSD program for GHGemitting sources at the Tailoring Rule thresholds. In contrast, no state has informed EPA that it prefers to maintain its PSD applicability at the 100/250 tpy level and that it intends to acquire the additional resources to do so.
At this time, EPA is not further addressing, and therefore is not rescinding its approval of, the affected SIPs' PSD applicability provisions to the extent they remain unconstrained in the manner in which they incorporate newly regulated pollutants in respects other than PSD applicability to GHGemitting sources below the Tailoring Rule thresholds. As a procedural matter, EPA did not propose to do so in the Tailoring Rule proposal and EPA did not receive any comments indicating that it should do so. In addition, CAA section 110(k)(6) gives EPA the authority to make corrections ``as appropriate.'' This language provides EPA with discretion to choose how to make corrections. The current problem resulting from EPA's erroneous approvals of the SIPs in question is limited to the regulation of GHG emissions, and the current rule addresses this problem. The scope of this action does not foreclose further action to address EPA's error in the future. An agency may properly address an issue in 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 accordance with CAA section 110(k)(6), EPA has conducted this narrowing of approval through noticeandcomment rulemaking, which is the same manner as EPA conducted the prior approval.
2. Reconsideration Under CAA Section 301 and Case Law
In the alternative to the error correction under CAA section 110(k)(6) discussed above, EPA is using its authority to reconsider its prior approval actions in order to narrow its approval of the SIPs at issue. This authority lies in CAA section 301(a), read in conjunction with CAA section 110(k) and other statutory provisions, and case law holding that an agency has inherent authority to reconsider its prior actions.
EPA approved some of the SIP PSD provisions affected by this rule prior to 1990, under the authority of CAA section 110 as it read prior to amendment by the 1990 CAA Amendments. Prior to the amendments, CAA section 110(a)(2) authorized EPA to ``approve or disapprove [a SIP], or any portion thereof.'' EPA approved the rest of the SIP PSD provisions affected by this rule after 1990, i.e., under the authority of CAA section 110(k)(3)(4) as added by the 1990 CAA Amendments. These sections authorize EPA to approve a SIP submittal ``as a whole,'' ``approve [the SIP submittal] in part and disapprove [it] in part,'' or issue a ``conditional approval'' of a SIP submittal. CAA section 110(k)(3)(4).
In approving the SIPs under either CAA section 110(a)(2) as it read prior to 1990 or CAA section 110(k), EPA retained inherent authority to revise that action. The courts have found that an administrative agency has the inherent authority to reconsider its decisions, unless Congress specifically proscribes the agency's discretion to do so. See, e.g., Gun South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989) (holding that agenc
FOR FURTHER INFORMATION CONTACT
Mr. Michael S. Brooks, Air Quality Policy Division, Office of Air Quality Planning and Standards (C504 01), Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 5413539; fax number: (919) 5415509; email address: email@example.com.