[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Proposed Rules]
[Pages 55292-55365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24163]
[[Page 55291]]
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Part II
Environmental Protection Agency
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40 CFR Parts 51, 52, 70, et al.
Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule; Proposed Rule
Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 /
Proposed Rules
[[Page 55292]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51, 52, 70, and 71
[EPA-HQ-OAR-2009-0517; FRL-8966-7]
RIN 2060-AP86
Prevention of Significant Deterioration and Title V Greenhouse
Gas Tailoring Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to tailor the major source applicability
thresholds for greenhouse gas (GHG) emissions under the Prevention of
Significant Deterioration (PSD) and title V programs of the Clean Air
Act (CAA or Act) and to set a PSD significance level for GHG emissions.
This proposal is necessary because EPA expects soon to promulgate
regulations under the CAA to control GHG emissions and, as a result,
trigger PSD and title V applicability requirements for GHG emissions.
If PSD and title V requirements apply at the applicability levels
provided under the CAA, State permitting authorities would be paralyzed
by permit applications in numbers that are orders of magnitude greater
than their current administrative resources could accommodate. On the
basis of the legal doctrines of ``absurd results'' and ``administrative
necessity,'' this proposed rule would phase in the applicability
thresholds for both the PSD and title V programs for sources of GHG
emissions. The first phase, which would last 6 years, would establish a
temporary level for the PSD and title V applicability thresholds at
25,000 tons per year (tpy), on a ``carbon dioxide equivalent''
(CO2e) basis, and a temporary PSD significance level for GHG
emissions of between 10,000 and 25,000 tpy CO2e. EPA would
also take other streamlining actions during this time. Within 5 years
of the final version of this rule, EPA would conduct a study to assess
the administrability issues. Then, EPA would conduct another
rulemaking, to be completed by the end of the sixth year, that would
promulgate, as the second phase, revised applicability and significance
level thresholds and other streamlining techniques, as appropriate.
DATES: Comments. Comments must be received on or before December 28,
2009. Under the Paperwork Reduction Act, comments on the information
collection provisions are best assured of having full effect if the
Office of Management and Budget (OMB) receives a copy of your comments
on or before November 27, 2009.
Public Hearing: If anyone contacts us requesting to speak at a
public hearing on or before November 16, 2009, we will hold a public
hearing approximately 30 days after date of publication in the Federal
Register.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0517 by one of the following methods:
http://www.regulations.gov. Follow the online instructions
for submitting comments. Attention Docket ID No. EPA-HQ-OAR-2009-0517.
E-mail: [email protected]. Attention Docket ID No.
EPA-HQ-OAR-2009-0517.
Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2009-0517.
Mail: EPA Docket Center, EPA West (Air Docket), Attention
Docket ID No. EPA-HQ-OAR-2009-0517, U.S. Environmental Protection
Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC
20460. Please include a total of 2 copies. In addition, please mail a
copy of your comments on the information collection provisions to the
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attn: Desk Officer for EPA, 725 17th Street, NW.,
Washington, DC 20503.
Hand Delivery: U.S. Environmental Protection Agency, EPA
West (Air Docket), 1301 Constitution Avenue, Northwest, Room 3334,
Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2009-0517.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0517. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, avoid any form of encryption, and be
free of any defects or viruses. For additional information about EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air and Radiation
Docket and Information Center, EPA/DC, EPA West Building, Room 3334,
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Air Docket is (202)
566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Joseph Mangino, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-9778; fax number: (919) 541-5509; e-mail
address: [email protected].
To request a public hearing, please contact Pam Long, Air Quality
Planning Division, Office of Air Quality Planning and Standards (C504-
03), Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-0641; fax number: (919) 541-5509 no later
than November 16, 2009 to request a hearing.
SUPPLEMENTARY INFORMATION:
[[Page 55293]]
I. Preamble Glossary of Terms and Abbreviations
The following are abbreviations of terms used in the preamble.
APA Administrative Procedure Act
ANPR Advance Notice of Proposed Rulemaking
APA Administrative Procedure Act
AQRV Air Quality Related Value
BACT Best Available Control Technology
CAA Clean Air Act
CAM Compliance Assurance Monitoring
CBI Confidential Business Information
CFR Code of Federal Regulations
CH4 Methane
CO2 Carbon Dioxide
CO2e Carbon Dioxide Equivalent
CO Carbon Monoxide
EG Emission Guidelines
EPA U.S. Environmental Protection Agency
FERC Federal Energy Regulatory Commission
FIP Federal Implementation Plan
FLM Federal Land Manager
FTC Federal Trade Commission
FTE Full-Time Equivalent
GHG Greenhouse Gas
GWP Global Warming Potential
HAP Hazardous Air Pollutant
HFC Hydrofluorocarbon
HFE Hydrofluorinated Ether
ICR Information Collection Request
IPCC Intergovernmental Panel on Climate Change
MWCs Municipal Waste Combustion Facilities
NAAQS National Ambient Air Quality Standard
NESHAP National Emission Standards for Hazardous Air Pollutants
NOD Notice of Deficiency
NOX Nitrogen Oxides
NSPS New Source Performance Standard
NSR New Source Review
OMB Office of Management and Budget
OTAQ Office of Transportation and Air Quality
PFC Perfluorocarbon
ppm Parts Per Million
PSD Prevention of Significant Deterioration
PTE Potential to Emit
RIA Regulatory Impact Analysis
SBA Small Business Administration
SO2 Sulfur Dioxide
SF6 Sulfur Hexafluoride
SIP State Implementation Plan
Tg Teragrams
TIP Tribal Implementation Plan
tpy Tons Per Year
UNFCCC United Nations Framework Convention on Climate Change
II. General Information
A. Does this action apply to me?
Entities affected by this proposed action include sources in all
sectors of the economy, including commercial and residential sources.
Entities potentially affected by this proposed action also include
States, local permitting authorities, and tribal authorities. The
majority of categories and entities potentially affected by this action
are expected to be in the following groups:
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Industry Group NAICS\a\
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Agriculture, fishing, and hunting...... 11.
Mining................................. 21.
Utilities (electric, natural gas, other 2211, 2212, 2213.
systems).
Manufacturing (food, beverages, 311, 312, 313, 314, 315, 316.
tobacco, textiles, leather).
Wood product, paper manufacturing...... 321, 322.
Petroleum and coal products 32411, 32412, 32419.
manufacturing.
Chemical manufacturing................. 3251, 3252, 3253, 3254, 3255,
3256, 3259.
Rubber product manufacturing........... 3261, 3262.
Miscellaneous chemical products........ 32552, 32592, 32591, 325182,
32551.
Nonmetallic mineral product 3271, 3272, 3273, 3274, 3279.
manufacturing.
Primary and fabricated metal 3311, 3312, 3313, 3314, 3315,
manufacturing. 3321, 3322, 3323, 3324, 3325,
3326, 3327, 3328, 3329.
Machinery manufacturing................ 3331, 3332, 3333, 3334, 3335,
3336, 3339.
Computer and electronic products 3341, 3342, 3343, 3344, 3345,
manufacturing. 4446.
Electrical equipment, appliance, and 3351, 3352, 3353, 3359.
component manufacturing.
Transportation equipment manufacturing. 3361, 3362, 3363, 3364, 3365,
3366, 3369.
Furniture and related product 3371, 3372, 3379.
manufacturing.
Miscellaneous manufacturing............ 3391, 3399.
Waste management and remediation....... 5622, 5629.
Hospitals/Nursing and residential care 6221, 6231, 6232, 6233, 6239.
facilities.
Personal and laundry services.......... 8122, 8123.
Residential/private households......... 8141.
Non-Residential (Commercial)........... Not available. Codes only exist
for private households,
construction and leasing/sales
industries.
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\a\ North American Industry Classification System.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this proposal will also be available on the World Wide Web. Following
signature by the EPA Administrator, a copy of this action will be
posted on the EPA's New Source Review (NSR) Web site, under Regulations
& Standards, at http://www.epa.gov/nsr.
C. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. Send or deliver information
identified as CBI only to the following address: Roberto Morales, OAQPS
Document Control Officer (C404-02), U.S. EPA, Research Triangle Park,
NC 27711, Attention Docket ID No. EPA-HQ-OAR-2009-0517.
2. Tips for preparing your comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a
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Code of Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
D. How can I find information about a possible public hearing?
People interested in presenting oral testimony or inquiring if a
hearing is to be held should contact Ms. Pamela S. Long, New Source
Review Group, Air Quality Policy Division (C504-03), U.S. EPA, Research
Triangle Park, NC 27711, telephone number (919) 541-0641. If a hearing
is to be held, persons interested in presenting oral testimony should
notify Ms. Long at least 2 days in advance of the public hearing.
Persons interested in attending the public hearing should also contact
Ms. Long to verify the time, date, and location of the hearing. The
public hearing will provide interested parties the opportunity to
present data, views, or arguments concerning these proposed rules.
E. How is the preamble organized?
The information presented in this preamble is organized as follows:
I. Preamble Glossary of Terms and Abbreviations
II. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
C. What should I consider as I prepare my comments for EPA?
D. How can I find information about a possible public hearing?
E. How Is the preamble organized?
III. Overview of Proposed Rule
IV. Background
A. What are greenhouse gases and their sources?
B. What are the general requirements of the PSD program?
C. What are the general requirements of the title V operating
permits program?
D. What is the current treatment of GHG emissions under the
title V and PSD programs and what future actions may change that
treatment?
V. What would be the administrative burdens of implementing PSD and
title V at the current permitting thresholds?
A. PSD Implications
B. Title V Implications
C. ANPR Comments
VI. What is the legal rationale for this proposed Action?
A. ``Absurd Results'' Doctrine
B. ``Administrative Necessity'' Doctrine
C. Step-by-Step Process
D. What were the ANPR comments received on GHG tailoring options
for regulating GHG emissions under PSD and title V?
VII. Streamlining options and tools To address the administrative
burdens of PSD and title V for GHGs
A. Permit Streamlining Techniques for PSD and Title V
B. Implementation of Streamlining Techniques and Overall
Approach To Administering PSD and Title V Programs
C. Strategies for Obtaining GHG Reductions From Sources Under
the Proposed GHG Permit Thresholds
VIII. Description and Rationale of Proposed Action
A. Proposed Permitting Thresholds for GHGs
B. What is the definition of the GHG pollutant for the proposed
permitting thresholds?
C. What is the rationale for selecting the proposed GHG
permitting thresholds for PSD?
D. What is the rationale for selecting the proposed first-phase
GHG permitting threshold for title V?
E. how will EPA assess the GHG permitting thresholds in the
first phase of the tailoring program, and how will epa develop the
second phase?
IX. What would be the economic impacts of the proposed rule?
A. What entities are affected by this rule?
B. What are the estimated benefits to small sources due to
regulatory relief?
C. What are the economic impacts of this rulemaking?
D. What are the costs of the proposed rule for society?
X. What implementation issues are related to this proposal?
A. CAA Provisions Concerning SIP Requirements for PSD Programs,
State Submittal Requirements, and EPA Action
B. What PSD-Specific implementation considerations are there?
C. What title V-Specific implementation issues are there?
D. GHGs and title V permit fees
E. Implementation assistance and support
XI. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045--Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
XII. Statutory Authority
III. Overview of Proposed Rule
EPA is proposing to tailor the major source applicability
thresholds for GHG emissions under the PSD and title V programs of the
CAA by setting first-phase levels under both programs, setting a first-
phase PSD significance level \1\ for GHG emissions, undertaking efforts
to streamline administrability of the programs, and committing to an
assessment of administrability within 5 years and a second-phase
rulemaking within 6 years.
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\1\ ``Significant levels'' for regulated NSR pollutants are
commonly called ``significance levels'' or ``significance
thresholds,'' and these terms are used interchangeably for purposes
of this proposed action.
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This proposal is necessary because EPA expects soon to promulgate
regulations under the CAA to control GHG emissions from light-duty
motor vehicles and, as a result, trigger PSD and title V applicability
requirements for GHG emissions. When the light-duty vehicle rule is
finalized, the GHGs subject to regulation under that rule would become
immediately subject to regulation under the PSD program, meaning that
from that point forward, prior to constructing any new major source or
major modifications that would increase GHGs, a source owner would need
to apply for, and a permitting authority would need to issue, a permit
under the PSD program that addresses these increases. Similarly, for
title V it would mean that any new or existing source exceeding the
major source applicability level for those regulated GHGs, if it did
not have a title V permit already, would have 1 year to submit a title
V permit application.
If PSD and title V requirements apply at the applicability levels
provided under the CAA, many small sources would be burdened by the
costs of individualized PSD control technology requirements and permit
applications. In addition, State permitting authorities would be
paralyzed by enormous numbers of these permit applications; the numbers
are orders of magnitude greater than the current inventory of permits
and would vastly exceed the current administrative resources of the
permitting authorities. Based on the long-established judicial
doctrines of
[[Page 55295]]
``absurd results'' and ``administrative necessity,'' this proposed rule
would phase in PSD and title V applicability. As the first phase, this
rule would establish applicability thresholds for both the PSD and
title V programs at the level of 25,000 tpy CO2e, and would
establish a PSD significance level of between 10,000 and 25,000 tpy
CO2e. This rule also marks the beginning of a concerted
effort by EPA to streamline administration of the PSD and title V
programs as much as possible and as quickly as possible. In addition,
EPA commits that, within 5 years of promulgating the first phase, EPA
will conduct a study of the permitting authorities' ability to
administer the programs going forward, and then, within a year, conduct
rulemaking for the second phase of the program. This second phase will
either confirm the first-phase permitting levels or establish revised
ones or other streamlining techniques. EPA also proposes to identify as
the pollutant subject to PSD and title V for applicability purposes the
group of up to six GHG emissions, each one weighted for its global
warming potential, that are included in regulations for their control
under the CAA. EPA also proposes to conform its action on PSD State
implementation plans (SIPs) and title V programs to match the proposed
Federal applicability requirements.
More specifically, following this overview, section IV of this
preamble provides background information as to the nature of GHG
emissions and the general requirements of the PSD and title V programs.
Currently, PSD applies to sources that emit at least 100 or 250
(depending on the source category) tpy of pollutants subject to
regulation under the CAA, and title V generally applies to sources that
emit at least 100 tpy of pollutants subject to regulation under the
CAA. Currently, PSD and title V requirements apply on the basis of
emissions applicability thresholds that are pollutant-specific mass
emissions rates expressed in tpy. Under PSD, construction of a
stationary source that has the potential to emit (PTE) a regulated NSR
pollutant in an amount exceeding 100 or 250 tpy (depending on the
source category) (the ``major stationary source'' threshold, in the
terminology of EPA regulations) triggers PSD permitting requirements.
PSD permitting requirements are also triggered if a major stationary
source undertakes a modification that is projected to increase
emissions of a regulated NSR pollutant above an emissions threshold
(the ``significance level''). For any particular pollutant, this level
is zero unless and until EPA establishes one on the basis of de minimis
emissions or administrative necessity. Under title V, a source with
emissions exceeding a ``major source'' emissions threshold--generally
100 tpy on a PTE basis--triggers title V permitting requirements.
It should be noted that, as further explained in the background
section, there are no geographic areas currently designated
``nonattainment'' for GHG pollutants; as a result, this action affects
only the PSD program, and we are not proposing to amend the
``nonattainment NSR'' provisions of our major NSR program at this time,
nor are we proposing to amend any provisions that affect minor NSR
permitting.
Section IV of this preamble further describes the current and
expected future treatment of GHG emissions for applicability purposes
under those PSD and title V programs. In particular, section IV
describes the light-duty motor vehicle rule, which EPA recently
proposed and expects to promulgate by the end of March 2010, and which
will control GHG emissions from certain mobile sources. Under EPA's
current interpretation of PSD and title V applicability requirements,
promulgation of this motor vehicle rule will trigger the applicability
of PSD and title V requirements for stationary sources that emit GHGs.
In section V of this preamble, EPA describes the administrative
burdens on permitting authorities if the requirements of PSD and title
V programs are triggered without having this tailoring rule in place.
In short, without this tailoring rule, the administrative burdens would
be immense, and they would immediately and completely overwhelm the
permitting authorities. Without this tailoring rule, permitting
authorities would receive approximately 40,000 PSD permit applications
each year--currently, they receive approximately 300--and they would be
required to issue title V permits for approximately some six million
sources--currently, their title V inventory is some 15,000 sources.
These increases are measured in orders of magnitude. We estimate the
additional resource burdens in full-time equivalents (FTEs) and time
delays in processing permits, but the sheer numbers of additional
permits by themselves paint the picture of the overwhelming
administrative burdens.
In section VI of this preamble, we describe the legal rationale for
this tailoring rule. The judicial doctrine of ``absurd results''
authorizes departure from a literal application of statutory provisions
if it would produce a result that is inconsistent with other statutory
provisions or congressional intent, and particularly one that would
undermine congressional purposes. The judicial doctrine of
``administrative necessity'' authorizes an agency to depart from
statutory requirements if the agency can demonstrate that the statutory
requirements, as written, are impossible to administer. However, the
agency must first attempt to mitigate administrative problems through
techniques consistent with the statutory requirements, and, if variance
from the statutory requirements nevertheless is necessary to allow
administrability, the variance must be limited as much as possible.
As discussed in section VI of this preamble, to apply the statutory
PSD and title V applicability thresholds to sources of GHG emissions
would bring tens of thousands of small sources and modifications into
the PSD program each year, and millions of small sources into the title
V program. This extraordinary increase in the scope of the permitting
programs, coupled with the resulting burdens on the small sources and
on the permitting authorities, were not contemplated by Congress in
enacting the PSD and title V programs. Moreover, the administrative
strains would lead to multi-year backlogs in the issuance of PSD and
title V permits, which would undermine the purposes of those programs.
Sources of all types--whether they emit GHGs or not--would face long
delays in receiving PSD permits, which Congress intended to allow
construction or expansion. Similarly, sources would face long delays in
receiving title V permits, which Congress intended to promote
enforceability. For these reasons, the absurd results doctrine applies
to avoid a literal application of the thresholds.
By the same token, the impossibility of administering the permit
programs brings into play the administrative necessity doctrine. This
doctrine also justifies EPA to avoid a literal application of the
threshold provisions.
Instead, these doctrines authorize EPA to apply the PSD and title V
applicability provisions through a phased program. The first phase
would establish the applicability thresholds at the 25,000-tpy levels
and vigorously develop streamlining measures that would facilitate
applying PSD and title V on a broader scale with overburdening sources
and administrators. In this manner, the phased approach reconciles the
language of the statutory provisions with the results of their
application and with congressional intent.
[[Page 55296]]
In section VII of this preamble, we describe the streamlining
techniques--short of limiting the applicability of PSD and title V to
higher-emitting sources--that may be available to improve
administrability. These techniques range from defining ``potential to
emit''--which is the basis for calculating the statutory thresholds--to
be closer to actual emissions, to general permits and presumptive best
available control technology (BACT), which is the principal control
requirement under the PSD program. Although these techniques offer
promise over the long term to improve administrability, they cannot be
in place by March 2010, when we expect PSD and title V requirements to
be triggered for GHG emitters, or within a several-year period
thereafter. Accordingly, this tailoring rule is necessary at this time.
In section VIII of this preamble, we describe in detail our
proposed tailoring rule. For the PSD program, we are proposing to
establish, as the first phase, the GHG ``major stationary source''
emissions applicability threshold level at 25,000 tpy on a
CO2e basis. That is, sources that emit at this level or
higher would be considered ``major stationary sources'' and therefore
would become subject to PSD requirements when they construct or modify.
We are also proposing to establish in this first phase a PSD
``significance level'' emissions rate for GHGs and are proposing a
range for that value of 10,000 to 25,000 tpy CO2e for
comment. The ``significance'' level is important for determining
whether existing sources that make physical or operational changes
become subject to PSD and for determining whether sources that are
subject to PSD for other pollutants are also subject to PSD for their
GHG emissions.
As further described in section VIII of this preamble, for the
title V operating permits program, we are also proposing to establish
the GHG emissions applicability threshold level at 25,000 tpy
CO2e for this first phase. That is, sources that emit at
this level or higher would be considered ``major sources'' and
therefore would become subject to title V requirements.
As further described in section VIII of this preamble, as an
integral part of the tailoring rule, EPA proposes to commit to
complete, within 5 years of a final rule, a study to evaluate the
actual administrative burden resulting from the proposed GHG permitting
thresholds and possible other thresholds, and the progress of
developing streamlining techniques and augmentation of permitting
authorities' resources. In addition, EPA commits to propose and
promulgate a rulemaking--informed by the study--within 6 years from the
effective date of a final version of this rulemaking (i.e., 1 year from
the completion of the study) that would establish the second phase,
which would either reaffirm the GHG permitting thresholds, promulgate
alternative thresholds, adopt other streamlining techniques, and/or
take other action consistent with the goal of expeditiously meeting CAA
requirements in light of the administrative burden that remains at that
time.
During this first phase of the tailoring program, EPA proposes to
make a concerted effort to assess and implement streamlining options,
tools, and guidance--some of which we describe in section VII of this
preamble--to reduce the administrative burden on permitting authorities
when implementing PSD and title V for GHGs. EPA proposes to undertake
as many of these streamlining actions as possible and to do so as
quickly as possible. In addition, for larger sources that would be
subject to PSD and title V requirements during the first phase, EPA
intends to work closely with the stakeholders to develop efficient
methods for implementing those requirements. For smaller sources for
which PSD and title V requirements would not apply during the first
phase due to the increase in the major source applicability threshold,
EPA intends to identify cost-effective opportunities available as soon
as possible to achieve GHG reductions through means other than PSD and
title V (e.g., energy efficiency and other appropriate measures).
Section VIII of this preamble further describes our proposal to
define the relevant pollutants as the group of up to six GHG emissions
that have been regulated for control, calculated on the basis of global
warming potential (GWP).\2\
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\2\ The Intergovernmental Panel on Climate Change (IPCC)
describes GWP as an index, based upon radiative properties of well-
mixed GHGs, measuring the radiative forcing of a unit mass of a
given well-mixed greenhouse gas in the present-day atmosphere
integrated over a chosen time horizon, relative to that of
CO2. The GWP represents the combined effect of the
differing times these gases remain in the atmosphere and their
relative effectiveness in absorbing outgoing thermal infrared
radiation. (Intergovernmental Panel on Climate Change (IPCC),
Glossary of Terms used in the IPCC Fourth Assessment Report, WG1).
http://www.ipcc.ch/
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Section IX of this preamble describes the burden and economic
impacts of the proposed rule.
Section X of this preamble discusses implementation issues related
to this proposal. These include conforming EPA approval of the PSD
programs in SIPs and EPA approval of the State title V programs to be
consistent with the proposed applicability threshold levels. By way of
background, as soon as EPA promulgates a rule regulating for control of
GHG emissions--which we expect to occur with the proposed light-duty
motor vehicle rule, scheduled for promulgation at the end of March
2010--stationary sources will become subject to PSD and title V
requirements. The major source thresholds for PSD and title V,
significance level for PSD, and identification of GHGs subject to PSD
and title V as proposed in this tailoring rule would each take effect
immediately in the Federal PSD program (codified at 40 CFR 52.21) and
in the Federal operating permits program (codified at 40 CFR 71), as
applicable. To conform EPA action on PSD SIPs and State title V
programs, EPA intends to limit its previous approval of those SIPs and
title V programs to cover only the permitting of sources of GHG
emissions at or above the proposed threshold levels. EPA will take no
action on--that is, EPA will not disapprove--the PSD SIPs and title V
programs to the extent they require permitting of GHG emitters at
levels below the proposed thresholds. EPA proposes to take this action
by virtue of its authority to reconsider its previous regulatory
actions. Section X of this preamble also explains how we propose to
address the treatment of GHGs in the fee programs under title V.
IV. Background
A. What are greenhouse gases and their sources?
Gases that trap heat in the atmosphere are often called GHGs. Some
GHGs such as carbon dioxide (CO2) are emitted to the
atmosphere through natural processes as well as human activities. Other
gases, such as fluorinated gases, are created and emitted solely
through human activities. The primary GHGs of concern directly emitted
by human activities include CO2, methane (CH4),
nitrous oxide (N2O), hydrofluorocarbons (HFCs),
perfluorocarbons (PFCs), and sulfur hexafluoride (SF6).
These six primary GHGs will, for the purposes of this proposal, be
referred to collectively as ``the six primary GHGs.'' These six gases,
once emitted, remain in the atmosphere for decades to centuries. Thus,
they become well-mixed globally in the atmosphere and their
concentrations accumulate when emissions exceed the rate at which
natural processes remove them from the atmosphere. The heating effect
caused by the human-induced buildup of GHGs
[[Page 55297]]
in the atmosphere is very likely the cause of most of the observed
global warming over the last 50 years. A detailed explanation of
climate change and its impact on health, society, and the environment
is included in EPA's technical support document for the endangerment
finding proposal (Docket ID No. EPA-HQ-OAR-2009-0171-0137).\3\
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\3\ ``Document for Endangerment and Cause or Contribute Findings
for Greenhouse Gases under Section 202(a) of the Clean Air Act,''
Climate Change Division, Office of Atmospheric Programs, U.S.
Environmental Protection Agency, Washington, DC. April 17, 2009.
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In the U.S., the combustion of fossil fuels (e.g., coal, oil, gas)
is the largest source of CO2 emissions and accounts for 80
percent of total GHG emissions. More than half the energy-related
emissions come from large stationary sources such as power plants,
while about a third come from transportation. Of the six primary GHGs,
four (CO2, CH4, N2O, and HFCs) are
emitted by motor vehicles. Industrial processes (such as the production
of cement, steel, and aluminum), agriculture, forestry, other land use,
and waste management are also important sources of GHG emissions in the
U.S. These emissions are inventoried at a national level by EPA in the
Inventory of U.S. Greenhouse Gas Emissions and Sinks.\4\
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\4\ For additional information about the Inventory of U.S.
Greenhouse Gas Emissions and Sinks, and for more information about
GHGs, climate change, climate science, etc., see EPA's climate
change Web site at http://www.epa.gov/climatechange/.
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Different GHGs have different heat-trapping capacities. It is
useful to compare them to each other through the use of the
CO2e metric. This metric incorporates both the heat-trapping
ability and atmospheric lifetime of each GHG and can be used to adjust
the quantities, in tpy, of all GHGs relative to the GWP of
CO2. When quantities of the different GHGs are multiplied by
their GWPs, the different GHGs can be summed and compared on a
CO2e basis. Depending on which GWP values are used, the
calculated GHG emissions on a CO2e basis will vary.
Throughout this preamble, we are applying the GWP values established by
the Intergovernmental Panel on Climate Change (IPCC) in its Second
Assessment Report (SAR) (IPCC 1996).\5\ For example, CH4 has
a GWP of 21, meaning each ton of CH4 emissions would have 21
times as much impact on global warming over a 100-year time horizon as
1 ton of CO2 emissions. Thus, on the basis of heat-trapping
capability, 1 ton of CH4 would equal 21 tons of
CO2e. The GWPs of the six primary GHGs range from 21 (for
CH4) up to 23,900 (for SF6). Aggregating all GHGs
on a CO2e basis at the source level allows a facility to
evaluate its total GHG emissions contribution based on a single metric.
For a complete list of the applicable GWP values for each GHG, please
refer to EPA's Inventory of U.S. Greenhouse Gas Emissions and Sinks.
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\5\ ``Inventory of U.S. Greenhouse Gas Emissions and Sinks:
1990-2007,'' U.S. Environmental Protection Agency, EPA 430-R-09-004,
April 15, 2009. Table 1-2, p. 1-6. http://www.epa.gov/climatechange/emissions/usinventoryreport.html.
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B. What are the general requirements of the PSD program?
1. Overview of the PSD Program
The PSD program is a preconstruction review and permitting program
applicable to ``new major stationary sources'' and ``major
modifications'' at existing major stationary sources, in the
terminology of EPA's implementing regulations. The PSD program applies
in areas meeting the health-based National Ambient Air Quality
Standards (NAAQS) or for which there is insufficient information to
determine whether they meet the NAAQS (``unclassifiable'' areas). The
PSD program is contained in part C of title I of the CAA. The
``nonattainment NSR'' program applies in areas not meeting the NAAQS
and in the Ozone Transport Region, and is implemented under the
requirements of part D of title I of the CAA. Collectively, we also
commonly refer to these two programs as the major NSR program. The
governing EPA rules are contained in 40 CFR 51.165, 51.166, 52.21,
52.24, and part 51, appendices S and W. There is no NAAQS for
CO2 or any of the other primary GHGs, nor does EPA plan to
promulgate one; therefore, we do not anticipate that the
``nonattainment'' major NSR program will apply to GHGs.
The applicability of the PSD program to a particular source must be
determined in advance of construction or modification and is pollutant-
specific. The primary criterion in determining PSD applicability is
whether the proposed project is sufficiently large (in terms of its
emissions) to be a major stationary source or major modification, both
of which are described below.
a. Major Stationary Sources
Under PSD, a ``major stationary source'' is any source type
belonging to a specified list of 28 source categories which emits or
has a PTE of 100 tpy or more of any pollutant subject to regulation
under the CAA, or any other source type which emits or has the
potential to emit such pollutants in amounts equal to or greater than
250 tpy. See, e.g., 40 CFR 52.21(b)(1). We may refer to these levels as
the 100/250-tpy thresholds. A new source with a PTE at or above the
applicable ``major stationary source threshold'' amount is subject to
major NSR. These limits originate from section 169 of the CAA, which
applies PSD to any ``major emitting facility'' \6\ and defines the term
to include any source with a PTE of 100 or 250 tpy, depending on source
category.
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\6\ EPA's regulations employ the term ``major stationary
source'' in lieu of ``major emitting facility.'' e.g., 40 CFR
52.21(a)(2)(i), (b)(1)(i).
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b. Major Modifications
PSD applies to not only new construction but also to existing
sources that undertake a ``major modification,'' which is defined in
terms of the following three criteria:
(1) A physical change in, or change in the method of operation of,
a ``major stationary source'' must occur;
(2) The change must result in an increase in emissions that is
``significant,'' that is, equal to or above the significance level
defined for the pollutant in question, e.g., in 40 CFR 52.21(b)(23));
and
(3) The increase in emissions resulting from the change must be a
significant net emissions increase. In other words, when the increase
from the project is added to other contemporaneous increases or
decreases in actual emissions at the source, the net emissions increase
must be significant (equal to or above the significance level defined,
e.g., in 40 CFR 52.21(b)(23)).
Generally, significance levels for PSD are pollutant-specific
emissions rates. For example, the significance level for emissions of
nitrogen oxides (NOX) is 40 tpy. See, e.g., 40 CFR
52.21(b)(23)(i). However, for a regulated NSR pollutant for which no
specific significance level is listed, PSD applies to ``any increase.''
See, e.g., 40 CFR 52.21(b)(23)(ii). Thus, if GHGs were to become
subject to regulation and PSD review, and no significance levels for
GHGs had been established, the default value would be ``zero.''
EPA has promulgated significance levels for criteria pollutants and
certain other pollutants, which EPA generally based on levels that
represent a de minimis contribution to air quality problems. For
example, for certain pollutants regulated under the new source
performance standards (NSPS), EPA generally based significance levels
at 20 percent of the NSPS. These concentrations were compared to
available health and welfare data to assure that significant adverse
effects
[[Page 55298]]
were avoided.\7\ To this point, EPA has not established a significance
level for GHGs, and we currently do not have an adequate supporting
record to establish a similar health and welfare-based de minimis level
for significance for GHGs.
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\7\ EPA established significance levels for hazardous air
pollutants on a similar basis, but subsequently, in the 1990 Clean
Air Act Amendments, Congress mooted them by exempting hazardous air
pollutants from PSD, under CAA section 112(b)(6).
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2. General Requirements for PSD
Under the PSD program, one of the principal requirements is that a
new major source or major modification must apply BACT, which is
determined on a case-by-case basis taking into account, among other
factors, the cost and effectiveness of the control. EPA has developed a
``top-down'' approach for BACT review which involves a decision process
that includes identification of all available control technologies,
elimination of technically infeasible options, ranking of remaining
options by control and cost effectiveness, and then selection of BACT.
Under PSD, once a source is determined to be major for any regulated
pollutant, a BACT review is performed for each attainment pollutant
whose emissions exceed its PSD significance level as part of new
construction or modification projects at the source.
In addition to performing a BACT review, the source must analyze
the impact of the project on ambient air quality to assure that no
violation of any NAAQS or PSD increments will result, and must analyze
impacts on soil, vegetation, and visibility. Sources or modifications
that would impact Class I areas (e.g., national parks) may be subject
to additional requirements to protect air quality related values
(AQRVs) that have been identified for such areas. Under PSD, if a
source proposes to locate within 100 kilometers of a Class I area, the
Federal Land Manager (FLM) is notified and is responsible for
evaluating a source's projected impact on the AQRVs and recommending
either approval or disapproval of the source's permit application based
on anticipated impacts. There are currently no NAAQS or PSD increments
established for GHGs, and therefore these PSD requirements would not
apply to GHG emissions sources, even when PSD is triggered for GHG
emissions sources. However, as noted previously, if PSD is triggered
for a GHG emissions source, all regulated NSR pollutants which the new
source emits in significant amounts would be subject to PSD
requirements. Therefore, if a facility triggers review for regulated
NSR pollutants that are non-GHG pollutants for which there are
established NAAQS or increments, the air quality, additional impacts,
and Class I requirements would apply to those pollutants.
When the reviewing authority reaches a preliminary decision to
authorize construction of a proposed new major source or major
modification, it must provide notice of the preliminary decision and an
opportunity for comment by the general public, industry, and other
interested persons. After considering and responding to the comments,
the reviewing authority may issue a final determination on the
construction permit in accordance with the PSD regulations.
Usually NSR permits are issued by State or local air pollution
control agencies. In these cases, State and local air pollution control
agencies may have their own permit programs that are approved by EPA in
the SIP or they may be delegated the authority to issue permits on
behalf of EPA. In some areas, the EPA issues the permits.
3. Minor NSR Program
The permitting program for minor stationary sources is addressed by
section 110(a)(2)(C) of the CAA. We commonly refer to this program as
the minor NSR program. A minor stationary source means a source whose
PTE is lower than the major source applicability threshold for a
particular pollutant as defined in the applicable nonattainment major
NSR program or PSD program. As with nonattainment NSR requirements, the
CAA does not require that minor source programs apply to GHGs because
there are no NAAQS for GHGs.
C. What are the general requirements of the title V operating permits
program?
1. Overview of Title V
The title V operating permits program was added to the CAA by
Congress in 1990. The operating permits program requirements under
title V are intended to improve sources' compliance with the
requirements of the CAA. In summary, the title V program requires major
sources (generally defined as sources that actually emit or have the
potential to emit 100 tpy) and certain other sources to obtain
operating permits that: Consolidate all CAA requirements into a single
document; provide for review of these documents by EPA, States, and the
public; and require permit holders to track, report, and annually
certify their compliance status with respect to their permit
requirements.
Title V will be triggered for GHG emissions when EPA regulates them
for control under another provision of the CAA. Section 502(a) of the
Act sets forth the sources required to obtain operating permits under
title V. These sources include: (1) Any affected source subject to acid
rain rules under title IV of the Act; (2) any major source; (3) any
source required to have a permit under part C or D (PSD/NSR) of title I
of the Act; (4) ``any source subject to section 111 [NSPS] or section
112 [NESHAP];'' and (5) any other source designated by rule. See also
40 CFR 70.3(a) and 71.3(a). The requirements of section 502(a) are
primarily implemented through the operating permit program rules at 40
CFR part 70, which sets out the minimum requirements for title V
operating permit programs administered by State, local, and tribal
permitting authorities (57 FR 32261; July 21, 1992); and part 71, the
Federal operating permit program requirements that apply where EPA or a
delegate agency authorized by EPA to carry out a Federal permit program
is the title V permitting authority (61 FR 34228, July 1, 1996).
Title V generally does not add new substantive requirements for
pollution control, but it does require that each permit contain all of
a facility's ``applicable requirements'' under the CAA, and that
certain procedural requirements be followed, especially with respect to
compliance with these requirements. ``Applicable requirements'' for
title V purposes include all stationary source requirements, but do not
include mobile source requirements.
2. Title V Permit Requirements
When a source becomes subject to title V, it must apply for a
permit within 1 year of the date it became subject. The application
must include identifying information, a description of emissions and
other information necessary to determine applicability of CAA
requirements, identification and certification of the source's
compliance status with these requirements (including a schedule to come
into compliance for any requirements for which the source is currently
out of compliance), a statement of the methods for determining
compliance, and other information. The permitting authority then uses
this information to issue the source a permit to operate, as
appropriate. A title V source may not operate without a permit, except
that if it has submitted a complete application, the submission acts as
a ``shield'' that
[[Page 55299]]
authorizes it to operate while awaiting issuance of its permit.
Title V permits must contain the following main elements: (1)
Emissions standards to assure compliance with all applicable
requirements; (2) a duration of no more than 5 years, after which the
permit must be renewed; (3) monitoring, recordkeeping, and reporting
requirements necessary to assure compliance, including a semiannual
report of all required monitoring and a prompt report of each deviation
from a permit term; (4) provisions for payment of permit fees as
established by the permitting authority such that total fees collected
are adequate to cover the costs of developing and implementing the
program; and (5) a requirement for an annual compliance certification
by a responsible official at the source. An additional specific
monitoring requirement, compliance assurance monitoring (CAM), also
applies to some emissions units operating at major sources with title V
permits. The CAM rule requires source owners to design and conduct
monitoring of the operation of add-on control devices used to control
emissions from moderately large emissions units. Source owners use the
monitoring data to evaluate, verify, and certify the compliance status
for applicable emissions limits. The CAM rule is implemented in
conjunction with the schedule of the operating permits program. While
these are the main elements relevant to a discussion of GHGs, there are
numerous other permit content requirements and optional elements, as
set forth in the title V regulations at 40 CFR 70.6.
In addition to the permit content requirements, there are
procedural requirements that permitting authorities (typically States)
must follow in issuing title V permits, including (1) determining and
notifying the applicant that its application is complete; (2) providing
public notice and a 30-day public comment period on the draft permit,
as well as the opportunity for a public hearing; (3) giving notice to
EPA and affected States; and (4) preparing and providing to any
requester a statement of the legal and factual basis of the draft
permit. The permitting authority must take final action on permit
applications within 18 months of receipt. EPA also has 45 days from
receipt of a proposed permit to object to its issuance, and citizens
have 60 days to petition EPA to object. Permits may also need to be
revised or reopened if new requirements come into effect or if the
source makes changes that conflict with, or necessitate changes to, the
current permit. Permit revisions and reopenings follow procedural
requirements which vary depending on the nature of the necessary
changes to the permits.
D. What is the current treatment of GHG emissions under the title V and
PSD programs and what future actions may change that treatment?
This section of the preamble describes the current treatment of GHG
emissions under the PSD and title V programs--under which GHG emissions
are not included for purposes of determining applicability--including
recent regulatory and legal developments related to this action, and
then describes what future action may change that treatment.
1. Regulation of GHGs Under the CAA
a. The Massachusetts U.S. Supreme Court Decision
On April 2, 2007, in Massachusetts v. EPA, 549 U.S. 497 (2007), the
U.S. Supreme Court held that GHGs are air pollutants covered by the
CAA. Therefore, the Court further held that GHG emissions are subject
to CAA section 202(a) under which the Administrator must determine
whether or not emissions of GHGs from new motor vehicles or motor
vehicle engines cause or contribute to air pollution which may
reasonably be anticipated to endanger public health or welfare, or
whether the science is too uncertain to make a reasoned decision. This
decision resulted from a petition for rulemaking under section 202(a)
filed by more than a dozen environmental, renewable energy, and other
advocacy organizations. As a result of this decision, EPA decided to
issue an advance notice of proposed rulemaking (ANPR), discussed later
in this preamble, soliciting comment on how GHG emissions should be
regulated under the CAA.
b. The EPA ANPR
On July 30, 2008, EPA published an ANPR in the Federal Register
entitled, ``Regulating Greenhouse Gas Emissions under the CAA.'' 73 FR
44354, July 30, 2008. This ANPR presented information relevant to, and
solicited public comment on how to respond to, the U.S. Supreme Court's
decision in Massachusetts v. EPA, holding that GHGs are air pollutants
subject to the CAA. The notice reviewed the various CAA provisions
(including the PSD and title V requirements) that may be applicable to
sources of GHGs, examined the issues that regulating GHGs under those
provisions may raise, provided information regarding potential
regulatory approaches and technologies for reducing GHG emissions, and
raised issues relevant to possible legislation and the potential for
overlap between legislation and CAA regulation.
In addition, the notice described and solicited comment on
petitions the EPA had received to regulate GHG emissions from ships,
aircraft, and nonroad vehicles such as farm and construction equipment.
Finally, the notice discussed several other actions concerning
stationary sources for which EPA has received comment regarding the
regulation of GHG emissions, including promulgation of performance
standards or guidelines under CAA section 111 for new and existing
sources in various source categories. The EPA included options for
phasing in the PSD program and title V programs to mitigate burdens
that would occur if GHGs were to be regulated under the CAA and
solicited comments on those actions. Section V.C of this preamble
summarizes some of the substantive comments received on the ANPR. In
issuing the ANPR, EPA made clear that it believed that the best way to
address the problems posed by GHG emissions would be through
legislation directly addressing GHG emissions, rather than through use
of the tools in the CAA.
2. Current Applicability of the PSD Program to Sources of GHG Emissions
As explained earlier in this preamble, EPA treats sources as
subject to PSD requirements only if they emit ``regulated NSR
pollutants'' at specified threshold levels. Currently, EPA does not
consider GHG emissions to be ``regulated NSR pollutants'' under the PSD
program because GHG emissions have not, thus far, been subject to
regulation requiring control under the CAA. As discussed later in this
preamble, EPA is in the process of reviewing its approach to PSD
applicability and is in the process of developing a rulemaking--the
light-duty motor vehicle rule--that will trigger PSD applicability for
GHG emissions.
a. PSD Interpretive Memorandum
EPA is currently reconsidering the PSD Interpretive Memorandum
(previously referred to as the ``Johnson Memorandum''), which describes
the circumstances under which EPA considers a pollutant subject to PSD
requirements. See memorandum (in docket for this rulemaking) from
Administrator Stephen L. Johnson to Regional Administrators, ``EPA's
Interpretation of Regulations that Determine Pollutants Covered by
Federal Prevention of Significant Deterioration (PSD) Permit Program,''
December 18, 2008. The PSD
[[Page 55300]]
Interpretive Memorandum followed a decision by the Environmental
Appeals Board (EAB) in In re Deseret Power Electric Cooperative, on
November 13, 2008. PSD Appeal No. 07-03 (EAB 2008) (In re Deseret).
There, the Board remanded a PSD permit that EPA Region VIII issued on
August 30, 2007, to Deseret Power Electric Cooperative, authorizing the
latter to construct a new waste-coal-fired electric generating unit
near its existing Bonanza Power Plant, in Bonanza, Utah. The primary
issue before the Board was whether the permit had to include BACT
limits for CO2, which depended on whether CO2
meets the definition of a ``regulated NSR pollutant'' under 40 CFR
52.21(b)(50), which in turn interprets the provisions in CAA sections
165 and 169 that apply the BACT requirement to ``each pollutant subject
to regulation'' under the CAA. The Board rejected arguments by the
petitioner, the Sierra Club, that the CAA compelled a broad
interpretation of the phrase ``subject to regulation,'' which,
according to the petitioner, required EPA to apply BACT to pollutants
as long as they are subject to monitoring and reporting requirements.
Currently, and since 1993, sources covered by the Acid Rain program
have been required to monitor and report CO2 emissions
pursuant to the CAA. The Board also rejected the view advanced by the
EPA offices involved in the case--Region VIII and the Office of Air and
Radiation--that EPA had already established an interpretation of
``subject to regulation,'' which was that this term authorized BACT
only for pollutants subject to actual regulatory controls. Thus, the
Board remanded the permit to the Region to ``reconsider whether or not
to impose a CO2 BACT limit in light of the `subject to
regulation' definition under the CAA.'' In re Deseret, slip op. at 63.
On December 18, 2008, EPA's then-Administrator Stephen Johnson
issued a memorandum establishing an interpretation clarifying the scope
of the PSD program under the CAA (the PSD Interpretive Memorandum).
This memorandum interprets the definition of ``regulated NSR
pollutant'' to include each pollutant subject to either a provision in
the CAA or regulation adopted by EPA under the CAA that requires actual
control of emissions of that pollutant, and to exclude pollutants for
which EPA regulations only require monitoring or reporting.
On February 17, 2009, EPA Administrator Lisa Jackson responded to
an amended petition for reconsideration dated January 6, 2009, filed on
behalf of the Sierra Club and other parties (petitioners), seeking
reconsideration of the PSD Interpretive Memorandum. In Administrator
Jackson's response, she granted the petition for reconsideration in
order to allow for public comment on issues raised in the memorandum
and stated that EPA will also seek public comment on any issues raised
by the opinion of the EAB with regard to the In re Deseret decision (as
discussed in the PSD Interpretive Memorandum), to the extent they are
not coextensive with the issues raised in the memorandum. However,
Administrator Jackson made clear that the current interpretations in
the PSD Interpretive Memorandum remain in effect during the
reconsideration process.
Because the PSD Interpretive Memorandum concerns PSD applicability,
its reconsideration will identify the circumstances under which GHG
emissions are treated as ``subject to regulation under the CAA'' and,
therefore, are ``regulated NSR pollutants.'' Once GHG emissions are
considered ``regulated NSR pollutants,'' PSD program requirements for
existing thresholds (100/250 tpy) are triggered. The PSD Interpretive
Memorandum reconsideration is being addressed in a proposed rule
published in the Federal Register on October 7, 2009 (74 FR 51535).
Although several possible triggering events may be considered in that
action, the latest of these events would be the one that applies under
EPA's current interpretation: A nationwide rule controlling or limiting
GHG emissions. Presently, the EPA expects that the first such rule will
be the light-duty motor vehicle rule.
b. Light-Duty Vehicle Rule
EPA is currently developing a rule to regulate GHGs from mobile
sources under title II of the CAA (74 FR 24007; May 22, 2009). EPA
expects to promulgate this rule by the end of March 2010. As described
in the PSD Interpretive Memorandum, it is EPA's position that new
pollutants become subject to PSD and title V when a rule controlling
those pollutants is promulgated (and even before that rule takes
effect). Accordingly, as soon as GHGs become regulated under the light-
duty motor vehicle rule, GHG emissions will be considered pollutants
``subject to regulation'' under the CAA and will become subject to PSD
and title V requirements.
3. Current Applicability of Title V Program to GHGs
CAA section 502(a) and related definitions under sections 302 and
501, require that specified types of sources have operating permits.
These include any source that emits or has a potential to emit 100 tpy
of a pollutant subject to regulation (consistent with EPA's policy
interpretation) \8\, any source with a NSR or PSD permit, any major
source of a hazardous air pollutant (HAP), any source subject to acid
rain requirements, and certain minor sources subject to section 111 or
section 112 standards. As with the PSD program, currently GHGs are not
considered to be subject to regulation and have not been considered to
trigger title V applicability.
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\8\ EPA included this policy interpretation that title V
addresses 100-tpy sources of ``pollutants subject to regulation'' in
a memorandum from Lydia Wegman. Memorandum from Lydia N. Wegman,
Deputy Director, Office of Air Quality Planning and Standards, U.S.
EPA, ``Definition of Regulated Air Pollutant for Purposes of Title
V'' (Apr. 26, 1993). EPA continues to maintain this interpretation.
The interpretation in this memorandum was based on: (1) EPA's
reading of the definitional chain for major source under title V,
including the definition of ``air pollutant'' under section 302(g)
and the definition of ``major source'' under 302(j); (2) the view
that Congress did not intend to require a variety of sources to
obtain title V permits if they are not otherwise regulated under the
Act, (see also CAA section 504(a), providing that title V permits
are to include and assure compliance with applicable requirements
under the Act); and (3) promoting consistency with the approach
under the PSD program. While the specific narrow interpretation in
the Wegman Memorandum of the definition of ``air pollutant'' in CAA
section 302(g) is in question in light of the Massachusetts v. EPA
decision (finding this definition to be ``sweeping''), EPA believes
the core rationale for its interpretation of the applicability of
title V remains sound. EPA continues to maintain its interpretation,
consistent with CAA sections 302(j), 501, 502 and 504(a), that title
V applies to 100 tpy sources of pollutants subject to regulation.
This interpretation is based primarily on the purpose of title V to
include all regulatory requirements applicable to the source in one
document to assure compliance, see, e.g., CAA section 504(a), and to
promote consistency with the approach under the PSD program.
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V. What would be the administrative burdens of implementing PSD and
title V at the current permitting thresholds?
This section of the preamble describes the additional
administrative burdens for the PSD and title V programs in terms of
staffing needs, time for processing permits, and costs that permitting
authorities would incur if sources of GHG emissions were to trigger PSD
and title V at the statutory thresholds, which we shorthand as the 100/
250-tpy thresholds. Evidence we have collected to this point makes it
clear that if PSD and title V applicability requirements are triggered
at those threshold levels, an enormous influx of permits would occur--
tens of thousands of PSD permits and millions of title V permits--which
would create enormous administrative burdens for permitting authorities
that would far exceed their current capacity to administer the PSD and
title V programs. It is also worth noting here that, under a scenario
where
[[Page 55301]]
State or local permitting authorities do not have the resources to
implement the title V or PSD programs for GHG sources at current CAA
permitting applicability thresholds, EPA may withdraw its approval, in
which case, EPA would become the permitting authority and the enormous
resource requirements would shift to EPA to implement these programs.
A. PSD Implications
We evaluated the additional administrative burden and cost of
including GHG emitters in the PSD program at the current 250-tpy major
source permitting threshold (but not at 100 tpy \9\). To calculate the
administrative burdens and cost, we first estimated the number of new
sources and modifications that would be subject to PSD if GHGs were
included at the 250-tpy threshold level. We developed these estimates
of number of new sources and modifications as part of our GHG threshold
data analyses. For more information on these analyses, see the
technical support documents entitled ``Technical Support Document for
Greenhouse Gas Emissions Thresholds Evaluation'' and ``Methodology for
Estimating Modified Sources That Would Be Subject to PSD Permitting for
GHGs;'' Prepared by EPA Staff; August 2009 in the docket for this
rulemaking.
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\9\ In light of time and resource constraints, we did not
calculate the additional administrative burden and cost of including
in the PSD program sources that emit between 100 tpy and 250 tpy and
that are among the 28 source categories identified in CAA section
169(l). Including these sources in the calculation would increase
the administrative burdens and costs of implementing PSD at the
statutory thresholds.
---------------------------------------------------------------------------
After estimating the number of affected facilities and sources, we
then evaluated the additional administrative burden and cost of
including these numbers of new and modified GHG emitters in the PSD
program. Our burden estimates are based on labor and cost information
from the existing Information Collection Requests (ICRs) for PSD
programs.\10\
---------------------------------------------------------------------------
\10\ ``Summary of ICR-based Data Used to Estimate Avoided Burden
and Evaluate Resource Requirements at Alternative GHG Permitting
Thresholds;'' Prepared by EPA Staff; August 2009.
---------------------------------------------------------------------------
Based on our GHG threshold data analysis, we estimate that almost
41,000 new and modified facilities per year would be subject to PSD
review, based on the current rate of modifications at major sources, if
a GHG major source threshold of 250 tpy CO2e were applied.
Compared to the 280 PSD permits currently issued per year, this would
be an increase in permits of more than 140-fold.
We estimated the number of workload hours and cost a permitting
authority would expend on each new source and each modification. We
based these estimates on the workload hours and cost for processing
permits for new sources of non-GHG emissions, which we derived from
labor and cost information from the existing ICRs for PSD programs. The
ICRs show that permitting authorities expend 301 hours to permit a new
or modified industrial source. For more detail on information used from
the PSD ICR for this evaluation, please refer to the docket for this
rulemaking.
We then made assumptions for number of workload hours and costs for
new sources of GHG emissions. We assumed that permitting new industrial
GHG sources that emit in excess of the 250-tpy threshold would be of
comparable complexity to permitting non-GHG emitting industrial sources
that are subject to PSD. Thus, for these sources, we assumed that
permitting authorities would expend the same number of workload hours
and costs, on a per-permit basis, as they do for non-GHG emitting
industrial sources. On the other hand, for commercial and residential
GHG sources that emit GHGs above the 250-tpy threshold (and as a result
would be subject to the requirements of the PSD permitting program at
this threshold level), we assumed that the workload hours and cost for
permitting these sources would be significantly less than--only 20
percent of--the hours and cost necessary to prepare and issue initial
PSD permits or permit modifications for industrial GHG sources. This
20-percent estimate amounts to 60 hours of permitting authority time
per residential or commercial permit.
Based on these assumptions, the additional annual permitting burden
for permitting authorities, on a national basis, is estimated to be 3.3
million hours at a cost of $257 million to include all GHG emitters
above the 250-tpy threshold.
In addition to conducting our burden analysis, we also reviewed
summary information from State and local air permitting agencies
regarding additional resources and burden considerations if GHG sources
that emit above the 100/250-tpy thresholds were subjected to the PSD
and title V programs. This information covered 43 State and local
permitting agencies, representing programs from different regions of
the country and various permitting program sizes (in terms of
geographic and source population coverage). A summary of this
information can be found in the docket for this rulemaking.\11\ This
information showed significant burdens projected by permitting agencies
with adding sources of GHG emissions in terms of staffing, budget, and
other associated resource needs. Importantly, the agencies based their
analysis on the assumption that, for purposes of determining whether a
source is major, its emissions would be calculated on an actual
emissions (``actuals'') basis, and not on a PTE basis. On an actuals
basis, the agencies estimated a 10-fold increase in the number of
permits.
---------------------------------------------------------------------------
\11\ ``NACAA Summary on Permitting GHGs Under the Clean Air
Act''; Memorandum from Mary Stewart Douglas, National Association of
Clean Air Agencies to Juan Santiago, EPA/OAQPS, September 3, 2009.
---------------------------------------------------------------------------
Specifically, the agencies estimated that:
Assuming, again, that number of permits was to increase by
10-fold (based on actual emissions), the resulting workload would
require an average of 12 more FTEs per permitting authority at an
estimated cost of $1 million/year;
Without the additional FTEs, the average processing time
for a permit would increase to 3 years, which is three times the
current average processing time;
Permitting authorities would need 2 years on average to
add the necessary staff;
Permitting authorities would also need, on average, eight
additional enforcement and judicial FTEs;
Ninety percent of the permitting agencies indicated that
their staff would need training in all aspects of permitting for
sources of GHG emissions; and
A quarter of the permitting agencies reported that they
were currently under a hiring freeze.
It is important to reiterate that the State and local permitting
information on burden was based on the number of additional facilities
subject to PSD because their emissions of GHGs exceed the 100/250-tpy
thresholds at actual emissions rates, not PTE-based emissions rates.
However, the PSD applicability requirements are based on PTE. By
adjusting the increase in number of permits to account for GHG sources
that exceed the 100/250-tpy applicability thresholds based on their PTE
emissions, EPA estimated a 140-fold increase in numbers of PSD permits,
much more than the 10-fold increase estimated by the States based on
actual emissions.
The GHG threshold analyses used to identify the number of
facilities that would be affected at current PSD permitting thresholds,
and which is also used later in Section VIII for evaluating
[[Page 55302]]
alternative thresholds, are based on the PTE of GHG sources. PTE is
defined as the maximum capacity of a stationary source to emit a
pollutant under its physical and operational design, including certain
legal limitations, for example, on emissions or hours of operation. PSD
and title V programs both use PTE for defining major sources. Our
threshold analyses begin with actual emissions estimates, but we then
adjust the numbers upward to account for potential-to-emit. PTE
adjustments for industrial sources are generally based on industry-
specific capacity utilization factors, while those used for commercial
and residential sources are based on general sector-based information
on heating equipment and appliance usage in these sectors. While these
PTE adjustments are important for estimating affected facilities in all
sectors, they are a particularly relevant concern for determining the
number of facilities in the commercial and residential sector that may
be affected, where CO2 emissions are primarily due to space
heating/appliance usage and combustion units are likely to be used at
levels well below constant operation at maximum capacity. For example,
our PTE adjustment for commercial and residential sources resulted in
an upwards adjustment ranging from 85 to 90 percent in emissions from
their actual emission values. The basis for our PTE adjustments is
described in the ``Technical Support Document for Greenhouse Gas
Emissions Thresholds Evaluation'' found in the docket for this
proposal. We ask for specific comment on the reasonableness of these
PTE adjustments as they apply to the different sectors and source
categories, in particular, the commercial and residential sectors where
there is limited information available on equipment capacity
utilization.
There are multiple sources of uncertainty in our approaches for
estimating emissions, and thus for estimating numbers of sources. For
example, the PTE adjustment factors just described may overstate or
understate the maximum emissions from sources particularly for the
commercial and residential sectors. In addition, there are inherent
uncertainties in developing source counts from nationally aggregated
statistics, as was done for the estimates for commercial and
residential sources which rely on the allocation of national level
statistics for energy consumption. The allocation factors we used,
based on U.S. Energy Information Administration statistical sampling
procedures, are likely the best available to estimate the population of
residential and commercial sources exceeding different GHG thresholds.
Again, these uncertainties may result in either overestimates or
underestimates. The uncertainty is less for industrial categories,
where we generally utilized facility-based methodologies, but because
it was necessary to use varying methodologies for different source
types, as described in the Technical Support Document, the
uncertainties will not be uniform across all categories. We request
comment on all aspects of our threshold analysis, possible sources of
error, suggestions for reducing uncertainties, and alternate approaches
to estimating emissions from commercial and residential sources.
B. Title V Implications
The triggering of title V requirements for GHG would result in
administrative burdens that stem from sources' obligation to apply for
permits. These obligations apply differently depending on whether the
source already has a title V permit. Most significant are the more than
six million sources of GHGs that would become newly subject to title V
requirements because they exceed the 100-tpy threshold for GHG but did
not for previously regulated pollutants. Although there are generally
not applicable requirements for GHGs that apply to such sources, these
six million sources would be required to submit a title V permit
application within 1 year. Permitting authorities would need to issue
these permits within 18 months of receipt of a complete application,
and these permits would need to include any requirements for non-GHGs
that may apply to the source, such as provisions of an applicable SIP.
For any such requirements, permitting authorities would also need to
develop terms addressing the various compliance assurance requirements
of title V, including monitoring, deviation reporting, six-month
monitoring reports, and annual compliance certifications.
Adding to the burden described above would be the burden to add GHG
terms to the 14,700 existing title V permits. While, in general,
existing title V permits would not immediately need to be revised or
reopened to incorporate GHG (because as noted above, there are
generally not applicable requirements for GHGs that apply to such
sources), permitting authorities may face burdens to update existing
title V permits for GHG under two possible scenarios: (1) EPA
promulgates or approves any applicable requirements for GHGs that would
apply to such a source, which would generally require a permit
reopening or renewal application, or (2) the source makes a change that
would result in an applicable requirement for GHGs to newly apply to
the source, such as PSD review, which would generally require an
application for a permit revision. Permitting authorities will also
need to process permit renewal applications, generally on a 5-year
cycle, and such renewals would need to assure that the permit properly
addresses GHG. Finally they would have to process title V applications
for new sources (including all the PSD sources previously discussed).
Obviously, this massive influx of permit applications would
overwhelm permitting authorities' administrative resources. Indeed,
permitting authorities report that they currently are having difficulty
keeping up with their existing permit workloads. The Title V Operating
Permits System database, which tracks permit issuance, confirms that
issuance of many permits is already delayed. By increasing the volume
of permits by over 400 times, the administrative burden would be
unmanageable.
As with PSD, we have quantified the extent of the administrative
problem that would result in workload hours and cost on the basis of
information concerning hours and costs for processing existing title V
permits that is indicated on ICRs. However, we recognize that more than
97 percent of these new sources would be commercial and residential
sources. We estimate that for permitting authorities, the average new
commercial or residential permit would require 43 hours to process,
which is 10 percent of the time needed for the average new industrial
permit. For an average existing permit, which permitting authorities
would need to process through procedures for significant revisions and
permit renewals, adding GHG emissions to the permit would result in, we
estimate, 9 additional hours of processing time, which is 10 percent of
the amount of time currently necessary for processing existing permits.
We estimate that the total nationwide additional burden for permitting
authorities for title V permits from adding GHG emissions at the 100-
tpy threshold would be 340 million hours, which would cost over $15
billion.
As noted in this preamble's discussion of PSD burdens, we also
reviewed summary information from State and local permitting agencies,
which showed significant burdens associated with adding GHGs in their
title V programs in terms of staffing, budget, and other associated
resource
[[Page 55303]]
needs.\12\ Again, note that the permitting agencies based their
estimates on numbers of permits that would be required from sources
subject to the 100-tpy title V applicability threshold on an actuals-
not PTE-basis. Based on that level, the agencies assumed a 40-fold
increase in numbers of permits, and estimated that:
---------------------------------------------------------------------------
\12\ ``NACAA Summary on Permitting GHGs Under the Clean Air
Act''; Memorandum from Mary Stewart Douglas, National Association of
Clean Air Agencies to Juan Santiago, EPA/OAQPS, September 3, 2009.
---------------------------------------------------------------------------
The resulting workload would require an average of 57 more
FTEs per permitting agency at an estimated cost of $4.6 million/year;
Without the additional FTEs, the average processing time
for a permit would increase to almost 10 years, which is 20 times the
current average permit processing time;
Permitting authorities would need 2 years on average to
add the necessary staff;
On average, permitting authorities would need 29
additional enforcement and judicial staff;
Eighty percent of the permitting authorities indicated
that their staff would need training in all aspects of permitting for
sources of GHG emissions; and
A quarter of the permitting authorities reported that they
were currently under a hiring freeze.
It is important to reiterate that, as with PSD, the State and local
information on projected permitting burden is based on the number of
additional facilities subject to title V because their emissions of
GHGs exceed the 100-tpy thresholds at actual emissions rates, not the
PTE-based emissions rates. However, the title V applicability
requirements are based on PTE. As noted elsewhere in this preamble, the
State and local agencies estimated a 40-fold increase in numbers of
title V permits based on the amount of GHG sources' actual emissions.
By adjusting the summary estimates provided by the State and local
agencies to account for GHG sources that exceed the 100-tpy threshold
based on their PTE emissions, EPA estimated that the average permitting
authority would need 570 more FTEs to support its title V permitting
program.
C. ANPR Comments
We examined the ANPR comments received for further information on
the additional administrative burdens that permitting programs would
carry if PSD requirements for sources of GHG emissions were triggered
at the current 100/250-tpy thresholds and title V requirements were
triggered at the current 100-tpy threshold. Most industry stakeholders
who commented on the ANPR believe that triggering title V and PSD
applicability for GHG emissions sources would be disastrous and that a
regulatory gridlock would ensue. Many of these industry commenters
agreed with the U.S. Chamber of Commerce's study \13\ which found that
regulating GHGs under the CAA would cause 1,000,000 commercial
buildings, nearly 200,000 manufacturing operations, and about 20,000
large farms to become CAA-regulated stationary sources. In fact, most
of the industry commenters believed that these estimates underestimated
the impacts. Commenters expressed that the implications of all these
sources becoming CAA-regulated stationary sources would cause a large
permitting backlog, as States do not have the staff or training to take
on such a large burden. In addition, commenters stressed that many of
these sources have never needed an air permit before and would have to
obtain basic knowledge of the permitting regulations and how to comply
with them, which would also impose more burdens on the permitting
authorities. Many of the new sources would be small emitters not
previously regulated under the CAA.
---------------------------------------------------------------------------
\13\ ``A Regulatory Burden: The Compliance Dimension of
Regulating CO2 as a Pollutant''; Prepared for the U.S.
Chamber of Commerce; September 2008. See Docket ID No. EPA-HQ-OAR-
2008-0318-0402.1.
---------------------------------------------------------------------------
VI. What is the legal rationale for this proposed action?
This section of the preamble discusses the legal rationale for
phasing in the applicability thresholds for PSD and title V purposes as
proposed, which are two doctrines that courts have relied on in
interpreting and applying statutory requirements: The ``absurd
results'' doctrine and the ``administrative necessity'' doctrine. These
doctrines are related, apply in this case because of the same factual
circumstances, and justify the same application--that is, the phased
approach--of the PSD and title V applicability provisions. But they are
independent justifications, and therefore will be discussed
independently.
A. ``Absurd Results'' Doctrine
This proposed action establishing the first phase of the PSD and
title V applicability thresholds, in lieu of applying the statutory
100/250 tpy thresholds literally for GHG sources, is supported by a
judicial doctrine that may be termed the ``absurd results'' doctrine.
Applying the threshold provisions literally for the period immediately
after PSD and title V are triggered for GHG emissions would lead to
results that contravene congressional intent and, in fact, undermine
Congress's purposes for both permitting programs.
1. Overview
As discussed in detail below, the courts are reluctant to invoke
this doctrine precisely because it entails departing from the literal
application of statutory provisions, but they nevertheless do so when
the literal application produces results that are inconsistent with
other statutory provisions, run contrary to expressed congressional
intent or actually undermine congressional intent, or are otherwise so
illogical or contrary to sensible policy as to be beyond anything that
Congress could reasonably have intended. This is one of the rare cases
in which the doctrine applies because the extraordinary increases in
PSD and title V permit applications that would result from a literal
application of the 100/250 tpy threshold requirements would, at least
during the near term--until EPA and the permitting authorities can
develop streamlining methods and ramp up resources--extensively disrupt
the two permitting programs and impose undue regulatory burdens in the
aggregate on the sources newly subject to PSD and title V permit
requirements. These results would create tensions with other explicit
requirements of the PSD and title V provisions, run contrary to
expressed congressional intent for the PSD and title V provisions, and,
in fact, severely undermine both programs.
The applicability of the absurd results legal doctrine to this
proposal should be reviewed with EPA's proposed action in mind: EPA
proposes to establish a process for implementing the PSD and title V
applicability requirements, including a first phase that would consist
of establishing the specified thresholds and vigorously developing
streamlining methods; then, after 5 years, preparing an assessment; and
then, by the sixth year, promulgating a rulemaking for further action.
In addition, during this first phase, we expect the permitting
authorities to ramp up resources for permit issuance.
With respect to PSD, a literal application of the applicability
thresholds in CAA sections 165(a)(1) and 169(2)(C) of 100 or 250 tpy
for GHG emitters would create significant tensions with two other PSD
provisions during at least the first phase in period after the
triggering of PSD applicability by the light-duty vehicle rule, and
before the development of streamlining
[[Page 55304]]
methods and the addition of permitting resources. First, a literal
application would render it impossible for permitting authorities to
meet the requirement in CAA section 165(c) to process permit
applications within 12 months. During this initial period, the number
of permit applications would increase by 150-fold, an unprecedented
increase that would far exceed administrative resources. Permitting
authorities have estimated that it would take 10 years to process a PSD
permit application, on average, and the resulting backlog would affect
the permit applications for all sources, not just the GHG emitters.
This backlog would grow by tens of thousands each year following
the triggering of PSD applicability--again, for at least the first few
years--and thereby undermine a second express PSD provision, section
160(3). This provision describes, as one of the purposes of the PSD
program, ``to insure that economic growth will occur in a manner
consistent with the preservation of existing clean air resources.''
Because the PSD requirements apply on a preconstruction basis--that is,
they require permits before sources may construct or modify--tens of
thousands of sources seeking to construct or modify during at least the
first few years after the triggering of PSD would instead face many
years of delay. This delay would impede economic growth by precluding
any type of source--whether it emits GHGs or not--from constructing or
modifying for years after its business plan contemplates.
In addition, a literal application of the 100/250 tpy threshold in
the PSD provisions during at least the first few years after PSD is
triggered for GHG emitters would be contrary to, and in fact would
undermine, expressed congressional intent in several important ways: As
just noted, it would undermine congressional intent to authorize
economic growth, albeit with environmental safeguards. In addition, the
PSD requirements entail significant regulatory costs to affected
sources because the sources must identify and implement BACT on a
source-specific basis. The legislative history of the PSD provisions
makes clear that Congress intended the PSD program to apply only to
larger sources, and not to smaller sources, in light of the larger
sources' relatively greater ability to bear the costs of PSD and their
greater responsibility for the pollution problems. In enacting the PSD
requirements during the 1977 Clean Air Act Amendments, Congress,
focused as it was on sources of conventional pollutants and not global
warming pollutants, expected that the 100/250 tpy applicability
thresholds would limit PSD to larger sources. But because very small
sources emit CO2 in quantities as low as 100/250 tpy, a
literal application of the threshold to GHG emitters, without
streamlining, would sweep in large numbers of small sources and subject
them to the high costs of determining and meeting individualized BACT
requirements, while also overwhelming permitting authorities' capacity
to process those applications. Thus, a literal application of the 100/
250 tpy thresholds would sweep into the PSD program tens of thousands
of smaller sources that Congress did not intend to include, and the
resulting strain on administrative resources would preclude the
hundreds of larger sources that Congress did intend to be subject to
the program from obtaining permits at least for an initial period. In
time, the development of streamlining methods and the ramping up of
administrative resources would bridge the gap between the literal
language and congressional intent, and make it possible to expand the
PSD program in a sensible manner that would make sense from the
standpoint of the sources and the permitting authorities. But at least
for the initial period, these circumstances qualify as ``absurd
results'' that merit avoiding a literal application of the threshold
provision.
We reach similar conclusions for title V. A literal application of
the applicability threshold in CAA sections 502(a), 501(2)(B), and
302(j) of 100 tpy for GHG sources would bring some 6.1 million sources
into the title V program. For at least the first few years after title
V is triggered, until streamlining methods are developed and
administrative resources are ramped up, this would create significant
tensions with other title V provisions. The extraordinary number of
permit applications would render it impossible for permitting
authorities to meet the requirements of section 503(c) to process title
V permit applications within 18 months. Further, this number of permit
applications would severely disrupt implementation of the rest of the
carefully calibrated set of statutory requirements that Congress set
out in title V. These requirements set out specific--and brief--time
frames for EPA review and for public participation, and they simply
could not be complied with at least initially for this number of permit
applications.
A literal application of the 100 tpy threshold would also be
inconsistent with express congressional intent concerning title V. The
statutory provisions by their terms, supported by the legislative
history, indicate that Congress designed the title V program to promote
compliance by compiling into a single document all of the requirements
applicable to the source under the Act. The legislative history
indicates that some in Congress expected the title V permit program to
approximate the size of the Federal water permit program. However,
applying the 100 tpy threshold for GHG emitters would lead to permit
applications in numbers--some 6.1 million--that are almost 100 times
greater than what Congress expected. The large permit backlog and
inevitable multi-year delays in permit issuance that would ensue would
thwart Congress's purposes in enacting title V to promote compliance
with CAA requirements. As with PSD, this disruption would affect all
sources covered by the provisions, whether or not they emit GHGs.
Moreover, the great majority of the 6.1 million additional
permittees would not be subject to any CAA requirements and, as a
result, would be issued permits that do not include any applicable
requirements. Because Congress designed title V to require permits to
address applicable requirements, and because Congress envisioned a much
smaller program, immediately sweeping these sources into the program is
contrary to congressional intent. Yet, their inclusion in the program
would overwhelm administrative resources for at least an initial
period, until streamlining methods are developed, and preclude the
timely issuance and reissuance of permits to sources that Congress
clearly contemplated should be included in the program. Thus, a literal
application of the title V threshold provisions would bring in millions
of sources that Congress did not intend to cover, and thereby interfere
with the administration of the program for the thousands of sources
that Congress did intend to cover. As with PSD, in time, the
development of streamlining methods and the ramping up of
administrative resources would bridge the gap between the literal
language and congressional intent, and make it possible to include more
of these sources in the title V program in a manner that makes sense
for both the permittees and the permitters. But for the initial period,
as with PSD, these circumstances qualify as ``absurd results'' that
merit avoiding a literal application of the threshold provisions.
In the cases that apply the ``absurd results'' doctrine, the courts
go on to apply the statutory provisions in question in a manner that--
while not in
[[Page 55305]]
accordance with their literal reading--effectuates congressional intent
as much as possible. We believe that the process we propose in this
notice, which includes a first phase that establishes thresholds at the
specified levels while allowing time to develop streamlining approaches
and ramp up resources, followed by a study and further rulemaking, is
consistent with this caselaw.
2. Tailoring Approach
In discussing the absurd results caselaw and its applicability in
this case, it is important to keep in mind EPA's proposed action. As
discussed in detail elsewhere in this notice, EPA proposes a phased
plan designed to achieve full compliance with the PSD and title V
threshold requirements. The first phase entails the establishment of
applicability thresholds at the 25,000 tpy CO2e levels, and
significance levels at between 10,000 and 25,000 tpy CO2e.
In addition, the first phase entails development of streamlining
methods--including potential revisions to the definition of potential
to emit, general permits, and presumptive BACT--that allow us to craft
the application of PSD and title V in ways that are achievable and
effectively balance the burdens on both the permitting authorities and
the regulated community with the reductions achievable. The first phase
also includes the collection of information and further assessments in
a report, to be completed within 5 years, and culminates in a
rulemaking to be promulgated by the sixth year that will establish
further action.
3. PSD and Title V Threshold Provisions
Several PSD and title V provisions are relevant for present
purposes because of the specific requirements that they establish and
the window that they provide into congressional intent. These
provisions start with the PSD and title V applicability provisions. For
PSD purposes, the key applicability provisions are found in CAA
sections 165(a) and 169(1), which identify the new sources subject to
PSD, and CAA Sec. 111(a)(4), which describes the modifications of
existing sources that are subject to PSD. CAA section 165(a), 42 U.S.C.
7475, provides:
No major emitting facility on which construction is commenced
after August 7, 1977, may be constructed in any area to which this
part applies unless--
(1) A permit has been issued for such proposed facility in
accordance with this part setting forth emission limitations for
such facility which conform to the requirements of this part;
(2) The proposed permit has been subject to a review in
accordance with this section * * *, and a public hearing has been
held with opportunity for interested persons including
representatives of the Administrator to appear and submit written or
oral presentations on the air quality impact of such source,
alternatives thereto, control technology requirements, and other
appropriate considerations; * * *
(4) The proposed facility is subject to the best available
control technology for each pollutant subject to regulation under
this chapter emitted from, or which results from, such facility * *
*.
The term ``major emitting facility'' is defined, under CAA Sec.
169(1) to include:
* * * stationary sources of air pollutants which emit, or have
the potential to emit, one hundred tons per year or more of any air
pollutant from [28 listed] types of stationary sources. * * * Such
term also includes any other source with the potential to emit two
hundred and fifty tons per year or more of any air pollutant. This
term shall not include new or modified facilities which are
nonprofit health or education institutions which have been exempted
by the State.
The thresholds in CAA section 169(1) of 100-tpy for sources in the
28 listed categories and 250-tpy for all other sources may be referred
to as the 100/250-tpy thresholds.
As for modification of existing sources, CAA section 169(1)(C)
provides that the term ``construction,'' as used in CAA section 165(a)
(the PSD applicability section) ``includes the modification (as defined
in section 111(a)(4)) of any source or facility.'' Section 111(a)(4),
in turn, provides:
The term ``modification'' means any physical change in, or change
in the method of operation of, a stationary source which increases the
amount of any air pollutant emitted by such source or which results in
the emission of any air pollutant not previously emitted.
As interpreted by EPA regulations, these provisions, taken
together, provide that new stationary sources are subject to PSD if
they emit at the 100/250-tpy thresholds air pollutants that are subject
to EPA regulation, and that existing stationary sources that emit such
air pollutants at the 100/250-tpy thresholds are subject to PSD if they
undertake a physical or operational change that increases their
emissions of such air pollutants by any amount.
For title V purposes, the key applicability provisions are found in
CAA sections 502(a), 501(2)(B), and 302(j). These provisions provide
that it is unlawful for any person to operate a ``major source''
without a title V permit, section 502(a), and define a ``major source''
as ``any major stationary facility or source of air pollutants which
directly emits, or has the potential to emit, one hundred tons per year
or more of any air pollutant.'' CAA section 501(2)(B) and section
302(j). As noted elsewhere, these provisions, taken together and as
interpreted by EPA, provide that stationary sources are subject to
title V if they emit at the 100-tpy threshold air pollutants that are
subject to EPA regulation.
Other provisions of particular relevance are the requirements in
the PSD and title V programs for timely issuance of permits. For PSD,
the permitting authority must ``grant[ ] or den[y] [any completed
permit application] not later than one year after the date of filing of
such completed application.'' CAA Sec. 165(c). For title V, ``the
permitting authority shall approve or disapprove a completed
application * * * and shall issue or deny the permit, within 18 months
after the date of receipt thereof * * *.'' CAA section 503(c). Title V
goes on to include several provisions designed to support this 18-month
requirement. First, the permitting authority must develop ``adequate,
streamlined, and reasonable procedures for expeditiously determining
when applications are complete, for processing such applications, for
public notice * * * and for expeditious review of permit actions,
including * * * judicial review in State court of the final permit
action by [specified persons].'' CAA section 502(b)(6). Second, title V
includes a ``hammer'' provision designed to reinforce timely permit
issuance, which is that the permitting authority's program must
include:
To ensure against unreasonable delay by the permitting
authority, adequate authority and procedures to provide that a
failure of such permitting authority to act on a permit application
or permit renewal application (in accordance with the time periods
specified in [CAA Sec. 503] * * *) shall be treated as a final
permit action solely for purposes of obtaining judicial review in
State court of an action brought by any person referred to in
paragraph (6) to require that action be taken by the permitting
authority on such application without additional delay. CAA Sec.
502(b)(7).
Third, the permit program must include ``[a]uthority and reasonable
procedures consistent with the need for expeditious action by the
permitting authority on permit applications and related matters, to
make available to the public [certain permit-related documents]''. CAA
section 502(b)(8).
In addition, PSD includes a set of provisions that specifically
state ``the purposes of [the PSD program],'' which are to balance
environmental protection and growth. CAA Sec. 160. One of the
purposes, in subsection (1), is specifically ``to protect public health
and welfare,'' and another, in subsection
[[Page 55306]]
(3), is ``to insure that economic growth will occur in a manner
consistent with the preservations of existing clean air resources.''
Title V does not have a parallel set of provisions describing its
purpose, but it is clear from its provisions and its legislative
history, discussed below, that its key goal is to gather into a single
document the Clean Air Act requirements applicable to a source and
impose conditions necessary to assure compliance with such
requirements, and thereby promote the enforceability of CAA
requirements applicable to the covered sources. CAA Sec. 503(b)(1)
requires that the source's permit application must assure
``compl[iance] with all applicable requirements'' of the CAA, and Sec.
504(a) requires that ``[e]ach permit issued under [title V] shall
include * * * such * * * conditions as are necessary to assure
compliance with applicable requirements of [the Clean Air Act].'' See
H.R. Rep. No. 101-490, at 351 (1990) (``It should be emphasized that
the operating permit to be issued under this title is intended by the
Administration to be the single document or source of all of the
requirements under the Act applicable to the source.'').
In addition, both PSD and title V include detailed procedures for
implementation. The PSD provisions most relevant for sources of GHG are
that the proposed permit for each source must be the subject of a
public hearing with opportunity for interested persons to comment, CAA
Sec. 165(a)(2), and each source must be subject to best available
control technology, as determined by the permitting authority on a
source-by-source basis, CAA Sec. 165(a)(4), 169(3). Title V includes a
comprehensive and finely detailed implementation schedule that mandates
timely issuance of permits while building in EPA and affected State
review, public participation, and timely compliance by the source with
reporting requirements. Following the date that sources become subject
to title V, they have 1 year to submit their permit applications. CAA
Sec. 503(c). As noted above, the permitting authority then has 18
months to issue or deny the permit. CAA Sec. 503(c). Permitting
authorities must provide an opportunity for public comment and a
hearing. CAA Sec. 502(b)(6). If the permitting authority proposes to
issue the permit, the permitting authority must submit the permit to
EPA, and notify affected States, for review. CAA Sec. 505(a)(1). EPA
then has 45 days to review the permit and, if EPA deems it appropriate,
to object to the permit. CAA Sec. 505(b)(1). If EPA does object, then
the permitting authority must, within 90 days, revise it to meet the
objections, or else EPA becomes required to issue or deny the permit.
CAA Sec. 505(c). If EPA does not object, then, within 60 days of the
close of the 45-day review period, any person may petition EPA to
object, and EPA must grant or deny the petition within 60 days. CAA
Sec. 505(b)(2). If a permit is issued, it must include a permit
compliance plan, under which the permittee must ``submit progress
reports to the permitting authority no less frequently than every 6
months,'' and must ``periodically (but no less frequently than
annually) certify that the facility is in compliance with any
applicable requirements of the permit, and [ ] promptly report any
deviations from permit requirements to the permitting authority.'' CAA
Sec. 503(b).
4. ``Absurd Results'' Doctrine
The familiar Chevron two-step analysis provides the starting point
for EPA's interpretation of these statutory provisions. Under Chevron
step 1, an agency must determine whether Congress's intent in a
particular provision on a particular question is clear; if so, then the
agency must follow that intent. If the intent of a provision is not
clear, then the agency may, under step 2, fashion a reasonable
interpretation of the provision. Chevron U.S.A. Inc. v. NRDC, 467 U.S.
837, 842-43 (1984).
Here, the applicability provisions for PSD and title V are clear on
their face. However, the U.S. Supreme Court has held that the plain
meaning of a statutory provision is not conclusive ``in the `rare cases
[in which] the literal application of a statute will produce a result
demonstrably at odds with the intentions of the drafters' * * * [in
which case] the intention of the drafters, rather than the strict
language, controls.'' Ron Pair, 489 U.S. at 242 (citations
omitted).\14\
---------------------------------------------------------------------------
\14\ Judge Learned Hand's formulation of the doctrine is often
quoted in the caselaw:
Of course, it is true that the words used, even in their literal
sense, are the primary and ordinarily the most reliable, source of
interpreting the meaning of any writing. * * * But it is one of the
surest indexes of a mature and developed jurisprudence not to make a
fortress out of the dictionary; but to remember that statutes always
have some purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.
Cabell v. Markham, 148 F.2d 737, 738 (2d Cir.), aff'd 326 U.S.
404 (1945). See Giuseppi v. Walling, 144 F.2d 608, 624 (2d Cir.
1944) (opinion by Judge Hand) (``There is no surer way to misread
any document than to read it literally'').
---------------------------------------------------------------------------
In describing these cases as ``rare,'' the U.S. Supreme Court
seemed to be referring to the small percentage of statutory-
construction cases that are decided on the basis of the doctrine. The
D.C. Circuit, in surveying the doctrine over more than a century of
jurisprudence, characterized the body of law in absolute numbers as
comprising ``legions of court decisions.'' In re Franklyn C. Nofziger,
925 F.2d 428, 434 (D.C. Cir. 1991). The U.S. Supreme Court cases
include, among others, Nixon v. Missouri Municipal League, 541 U.S.
125, 132-33 (2004) (``any entity'' includes private but not public
entities); Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 542-45
(2002) (``implying a narrow interpretation of * * * `any claim
asserted' so as to exclude certain claims dismissed on Eleventh
Amendment grounds''); Ron Pair, 48 U.S. at 242; Green v. Bock Laundry
Machine Company, 490 U.S. 504 (1989) (provision in Federal Rule of
Evidence that protects ``the defendant'' against potentially
prejudicial evidence, but not the plaintiff, refers to only criminal,
and not civil, defendants); Train v. Colorado Public Interest Research
Group, Inc., 426 U.S. 1, 23-24 (1976) (prohibition in Federal Water
Pollution Control Act against discharging into navigable waters
``pollutants,'' which are defined to include ``radioactive materials,''
does not apply to three specific types of radioactive materials); Lynch
v. Overholser, 369 U.S. 705, 710, (1962) (statutory construction is not
confined to the ``bare words of a statute''); Utah Junk Co. v. Porter,
328 U.S. 39, 44 (1946) (``literalness may strangle meaning''); Markham
v. Cabell, 326 U.S. 404, 409 (1945) (``The policy as well as the letter
of the law is a guide to decision.''); United States v. American
Trucking Associations, Inc. 310 U.S. 534 (1940) (the term ``employees''
in the Federal Motor Carrier Act, is limited to employees whose
activities affect safety); C.V. Sorrels v. U.S., 287 U.S. 435, 446-49
(1932) (provisions of National Prohibition Act that criminalize
possessing and selling liquor do not apply if defendant is entrapped;
Court declines to apply the ``letter of the statute'' because doing so
``in the circumstances under consideration is foreign to its
purpose''); Holy Trinity Church v. U.S., 143 U.S. 457, 516-17 (1892)
(``any alien'' does not include a foreign pastor; Court stated, ``It is
a familiar rule, that a thing may be within the letter of the statute
and yet not within the statute, because not within its spirit, nor
within the intention of its makers * * * If a literal construction of
the words be absurd, the Act must be construed as to avoid the
absurdity''); United States v. Kirby, 7
[[Page 55307]]
Wall, 482, 486, 19 L.Ed. 278 (1868) (the statute punishing obstruction
of the mails is not to be applied to obstruction for the lawful purpose
of arresting a mail carrier indicted for murder).
The D.C. Circuit has also handed down several decisions that
applied the absurd results doctrine to avoid a literal interpretation
or application of statutory provisions. See Buffalo Crushed Stone, Inc.
v. Surface Transportation Board, 194 F.3d 125, 129-30 (D.C. Cir. 1999)
(regulation of Surface Transportation Board providing that if a notice
of exemption ``contains false or misleading information, the use of the
exemption is void ab initio'' does not apply to a notice containing
false information when declaring the notice void ab initio would
undermine the goals of the governing statute; a conflict between the
``literal application of statutory language'' and maintaining the
integrity of the regulatory scheme should be resolved by construing the
text in accordance with its purpose); U.S. v. Stewart, 104 F.3d 1377,
1388 (D.C. Cir. 1997) Environmental Defense Fund v. EPA, 82 F.3d 451,
468-69 (D.C. Cir. 1996) (although Clean Air Act requires that a Federal
action conform to the State implementation plan that is currently in
place, EPA may instead require conformity to a revised implementation
plan that State commits to develop; ``[t]his is one of those rare cases
* * * [that] requires a more flexible, purpose-oriented interpretation
if we are to avoid `absurd or futile results.' ''); In re Nofziger, 925
F.2d 428, 434-35 (D.C. Cir. 1991) (provision authorizing payment of
attorney fees to the subject of an investigation conducted by an
independent counsel of the Department of Justice only if ``no
indictment is brought'' against such individual does not preclude
payment of attorney fees when an indictment is brought but is
determined to be invalid).
To determine whether ``the intentions of the drafters'' differ from
the result produced from ``literal application'' of the statutory
provisions in question, the courts may examine the overall context of
the statutory provisions, including whether there are related statutory
provisions that either conflict or are consistent with that
interpretation,\15\ and including whether there is legislative history
that exposes what the legislature meant by the terms in question. In
addition, the courts may examine whether a literal application of the
provisions produces a result that the courts characterize variously as
absurd, futile, strange, or indeterminate, and therefore so illogical
or otherwise contrary to sensible public policy as to be beyond
anything Congress would reasonably have intended. After concluding this
examination, the courts uphold an application of the provisions that,
albeit not the literal application, is one that is nevertheless as
consistent with congressional intent as possible.
---------------------------------------------------------------------------
\15\ A related line of cases addresses statutory provisions that
directly, on their face, conflict with other statutory provisions.
In these cases, as with the ``absurd result'' cases, the courts may
decline to interpret literally the statutory provisions in question,
and instead interpret them to give as much effect as possible to all
of the relevant provisions. See, e.g., Mountain States Telephone and
Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985); Clark v.
Uebersee Finanz-Korporation, 332 U.S. 480 (1947); Citizens to Save
Spencer County v. EPA, 600 F.2d 844 (D.C. Cir. 1977).
---------------------------------------------------------------------------
The U.S. Supreme Court applied the absurd results doctrine in Green
v. Bock Laundry Machine Company, 490 U.S. 504 (1989). There, the Court
considered Federal Rule of Evidence 609(a), which provides:
General Rule. For the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime
shall be admitted * * * but only if the crime (1) [is of a specified
type] and the court determines that the probative value of admitting
this evidence outweighs its prejudicial effect to the defendant.
(Emphasis added.) The Court recognized that read literally, Rule 609(a)
applies in both criminal and civil litigation and gives an advantage to
defendants. Specifically, the rule extends to both the criminal and
civil defendants the protection of weighing the probative value of
evidence of certain crimes against its prejudicial effect, but as for
plaintiffs, the rule requires that evidence of those crimes be admitted
without weighing against prejudicial effect. The Court found that for
criminal litigation, this result makes sense because it is consistent
with the greater protections generally afforded to defendants. However,
for civil litigation, the Court found that this ``literal reading would
compel an odd result'' because, among other things, civil defendants
are not accorded greater protections than civil plaintiffs and, in any
event, whether a litigant is designated plaintiff or defendant often is
happenstance. The Court emphasized that ``[n]o matter how plain the
text of the Rule may be,'' it could not accept this result, and
concluded that ``as far as civil trials are concerned, Rule 609(a)(1)
`can't mean what it says.' '' 490 U.S. at 509-11 (citations omitted).
The Court reviewed the legislative history, and concluded that
notwithstanding the plain language, Congress ``intended that only the
accused in a criminal case should be protected from unfair prejudice by
the balance set out in Rule 609(a)(1).'' Id. at 523-24.
In cases in which the ``absurd results'' doctrine of statutory
constructions authorizes an agency to depart from the literal meaning
of the statute, the agency must do so in as limited a manner as
possible to effectuate underlying congressional intent. As the D.C.
Circuit has stated:
The rule that statutes are to be read to avoid absurd results
allows an agency to establish that seemingly clear statutory
language does not reflect the ``unambiguously expressed intent of
Congress,'' * * * and thus to overcome the first step of the Chevron
analysis. But the agency does not thereby obtain a license to
rewrite the statute. When the agency concludes that a literal
reading of a statute would thwart the purposes of Congress, it may
deviate no further from the statute than is needed to protect
congressional intent.
Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir.
1998).
5. PSD and Title V Applicability Requirements
The plain meaning of the PSD applicability provisions in CAA
Sec. Sec. 165(a)(1) and 169(1) is clear that once PSD is triggered for
GHG emissions, a source will be subject to PSD if it either belongs to
one of 28 specifically identified source categories and ``emit[s], or
ha[s] the potential to emit, one hundred tons per year or more of any
air pollutant,'' including GHGs, or does not belong to one of those
source categories and has ``the potential to emit two hundred and fifty
tons per year or more of any air pollutant,'' including GHGs.
Similarly, the plain meaning of the title V applicability requirements
in CAA Sec. Sec. 501(2)(B) and 302(j) is clear that once the title V
requirements are triggered, they would apply to a source that
``directly emits, or has the potential to emit, one hundred tons per
year or more of any air pollutant,'' including GHGs.
As described in detail elsewhere, applying the plain meaning of
these provisions once PSD and title V are triggered for GHG emissions
would impose PSD and title V permitting requirements on an
extraordinarily large number of sources: The number of sources subject
to PSD permits would increase from less than 300 per year to some
41,000 per year, and the number of sources subject to the title V
requirements would grow from less than 14,000 to some 6.1 million. For
at least an initial period of time, before permitting authorities could
develop streamlining mechanisms, these obligations would have severe
effects. From the permitting authorities' standpoint, the number of
permit applications would far exceed their
[[Page 55308]]
administrative capacity, and would inevitably result in delays in
issuance of permits to all sources--whether emitting conventional
pollutants or GHGs--that would be measured in many years. From the
sources' standpoints, thousands of sources that are quite small and
that have never been confronted with CAA obligations would incur the
expenses of PSD permitting requirements, including, most importantly,
indentifying and developing BACT controls on a source-by-source basis.
As for title V, millions of sources would be required to submit permit
applications that meet title V requirements, even though the great
majority of them would not be subject to any applicable CAA
requirements. During this initial period, permitting authorities could
develop streamlining approaches and ramp up administrative resources so
that afterwards, they would be better able to accommodate the large
numbers of permit applications and sources would be better able to
comply. But, again, during the initial period, severe problems would
ensue.
We believe that these effects of a literal application of the PSD
and title V applicability thresholds and their collateral consequences
are well beyond anything that Congress envisioned when it drafted the
PSD and title V requirements, and indeed undermine both permitting
programs. As a result, these effects bring into play the ``absurd
results'' doctrine.
a. PSD
(1) Tensions With Other Statutory Requirements
Turning first to PSD, an important indication that Congress would
not have intended that the threshold provisions be applied literally
under the present circumstances may be found in the tensions that this
literal application would create with other PSD provisions. CAA Sec.
165(c) is particularly important in this regard. It requires that the
permitting authority grant or deny ``[a]ny completed permit application
for a major emitting facility * * * not later than one year after the
date of filing of such completed application.'' A literal
interpretation of CAA sections 165(a)(1) and 169(1) to apply at the
100/250 tpy levels for GHG sources would render compliance with this
provision impossible by requiring far more permit applications than
permitting authorities could process under this 12-month deadline, for
at least an initial period of time until streamlining methods are
developed. As noted elsewhere, States have estimated that the number of
PSD permits that would be required under a 100/250 tpy threshold on an
actuals basis would result in an average processing time of 10
years.\16\
---------------------------------------------------------------------------
\16\ As noted elsewhere, because the applicability provisions
apply on a potential-to-emit basis, as well as an actuals basis, the
number of permit applications would be much greater than the
permitting authorities assumed, and therefore the processing times
would be much longer than 10 years.
---------------------------------------------------------------------------
A literal interpretation of CAA sections 165(a)(1) and 169(1) to
apply at the 100/250 tpy levels would also be directly inconsistent
with the PSD-purpose provision in CAA Sec. 160, in particular, Sec.
160(3), which is ``to insure that economic growth will occur in a
manner consistent with the preservation of existing clear air
resources.'' As the legislative history makes clear, Congress enacted
the PSD provisions to resolve issues arising when sources of criteria
pollutants seek to build or expand in areas with air quality that meets
the national ambient air quality standards, but that would deteriorate
with the addition of such new or expanded sources. Congress designed
the PSD provisions to provide a mechanism for allowing sources to
construct or modify in those clean-air areas, but with safeguards that
both protected health and welfare, and that also left enough room in
the airshed for still more economic growth. See, e.g., H. Rpt. 95-294,
95th Cong., 1st Sess., at 154 (legislation ``not only protect[s] public
health and welfare but also assur[es] future air resources will be
available for continuing the industrial and energy development so
necessary for the growth of the Nation''). Because PSD is a
preconstruction requirement, increasing permitting authorities'
workload from 300 to 41,000 permits would severely undermine this
purpose of facilitating economic growth, at least initially, until
permitting authorities can develop streamlining methods and ramp up
resources. Each year, many thousands of sources would face multi-year
delays in receiving their permits, and as a result, for all practical
purposes, they would be forced to place on hold indefinitely their
plans to construct or modify.
(2) Inconsistency With Congressional Intent
The legislative history of the PSD provisions--enacted, again, in
the 1977 Clean Air Act Amendments--also makes clear that a literal
application of the applicability provisions would lead to results that
are diametrically inconsistent with Congress's expressed intent. In
reviewing the legislative history, it should be borne in mind that
Congress was focused on sources of criteria pollutants--primarily
sulfur dioxide (SO2), particulate matter, nitrogen oxides
(NOX), and carbon monoxide (CO)--and not GHG emissions. This
focus stems from the basic purpose of the PSD program, which is to
safeguard maintenance of the NAAQS, combined with the limited awareness
at that time of the problem of climate change. See S 95-127 (95th
Cong., 1st Sess.), at 27.
Congress designed the PSD provisions to impose significant
regulatory requirements, on a source-by-source basis, to identify and
implement BACT and, for criteria pollutant, to also undertake certain
studies. Congress was well aware that because these requirements are
individualized to the source, they are expensive. Accordingly, Congress
designed the applicability provisions to apply these requirements to
industrial sources of a certain type and a certain size--sources within
28 specified source categories and that emit at least 100 tpy--as well
as all other sources that emit at least 250 tpy, and, by the same
token, to exempt other sources from these requirements. The legislative
history shows that Congress's limitation of PSD to larger sources was
quite deliberate, and was based on its determination to limit the costs
that PSD permitting entails to the larger sources in certain
industries. The D.C. Circuit has had occasion, in Alabama Power, to
acknowledge this legislative history: ``Congress's intention was to
identify facilities which, due to their size, are financially able to
bear the substantial regulatory costs imposed by the PSD provisions and
which, as a group, are primarily responsible for emissions of the
deleterious pollutants that befoul our nation's air.'' Alabama Power,
636 F.2d at 353. The Court added, ``Though the costs of compliance with
[the PSD] requirements are substantial, they can reasonably be borne by
facilities that actually emit, or would actually emit when operating at
full capacity, the large tonnage thresholds specified in section
169(1).''. Id. at 354.
Although Congress required that CAA requirements generally apply to
``major emitting facilities,'' defined as any source that emits or has
the potential to emit 100 tpy of any pollutant, Congress applied PSD to
only sources at 100 tpy or higher in 28 specified industrial source
categories, and at 250 tpy or more in all other source categories. This
distinction was deliberate: According to Sen. McClure, Congress
selected the 28 source categories after reviewing an EPA study
describing 190 industrial source categories. 122 Cong. Rec. 24521 (July
29, 1976) (statement by Sen. McClure).
[[Page 55309]]
Congress also relied on an EPA memorandum that identified the range
of industrial categories that EPA regulated under its regulations that
constituted the precursor to the statutory PSD program, and listed both
the estimated number of new sources constructing each year and the
amount of pollution emitted by the ``typical plant'' in the category.
The memorandum was prepared by B.J. Steigerwald, Director of the Office
of Air Quality Planning and Standards and Roger Strelow, EPA's
Assistant Administrator for Air and Waste Management (``Steigerwald-
Strelow memorandum). The Steigerwald-Strelow memorandum makes clear
that the 100 tpy cut-off for the 28 listed sources categories, and the
250 tpy cut-off for all other sources, was meaningful; that is, there
were a large number of sources below those cut-offs that Congress
explicitly contemplated would not be included in PSD. Id. at 24548-50.
Consistent with this, the legislative history on the Senate side
also specifically identified certain source categories that Senators
believed should not be covered by PSD. The Senate bill language limited
PSD to sources of 100 tpy or more in 28 listed source categories, and
to any other categories that the Administrator might add. Sen. Muskie
stated that the Senate bill excluded ``houses, dairies, farms,
highways, hospitals, schools, grocery stores, and other such sources.''
123 Cong. Rec. 18021 (June 8, 1977) (statement of Sen. Muskie). Sen.
McLure's list of excluded source categories were ``[a] small gasoline
jobber, or a heating plant at a community college, [which] could have
the potential to emit 100 tons of pollution annually.'' 122 Cong. Rec.
24548-49 (July 29, 1976) (statement of Sen. McClure). The Senate
Committee Report included a comparable list, and in describing it,
concisely articulated the cost-conscious basis for the line-drawing:
``[the PSD] procedure * * * must include an effective review-and-permit
process. Such a process is reasonable and necessary for very large
sources, such as new electrical generating plants or new steel mills.
But the procedure would prove costly and potentially unreasonable if
imposed on construction of storage facilities for a small gasoline
jobber or on the construction of a new heating plant at a junior
college, each of which may have the potential to emit 100 tons of
pollution annually.'' S. Rpt. 95-127 at 96-97.
The enacted legislation differs from the Senate bill by replacing
the authorization to EPA to include by regulation source categories in
addition to the listed 28 source categories with an inclusion of all
other sources if they exceed 250 tpy, and with an authorization for the
States to exempt hospitals and educational institutions. But Congress's
overall intention remains clear, as the D.C. Circuit described in
Alabama Power:. ``Congress's intention was to identify facilities
which, due to their size, are financially able to bear the substantial
regulatory costs imposed by the PSD provisions and which, as a group,
are primarily responsible for emissions of the deleterious pollutants
that befoul our nation's air * * * [With respect to] the heating plant
operating in a large high school or in a small community college * * *
[w]e have no reason to believe that Congress intended to define such
obviously minor sources as 'major' for the purposes of the PSD
provision.'' \17\ 636 F.2d at 353-54. However, applying the 100/250 tpy
threshold literally to CO2 emissions would frustrate
congressional intent by subjecting to PSD sources that Congress
specifically intended not to include. This occurs simply because
although Congress evaluated whether sources should be included in PSD
by reference to the amount of the emissions of conventional pollutants,
many sources combust fossil fuels for heat or electricity, and the
combustion process produces quantities of CO2 that are far
in excess of the sources' quantities of conventional pollutants and, in
many cases, Congress's carefully considered 100 and 250 tpy thresholds.
As a result, many of the ``typical plant[s]'' identified in the
Steigerwald-Strelow memorandum that Congress thought would be excluded
from PSD due to the relatively small amounts of their conventional
pollutants would in fact be included due to the CO2emissions
from their heating or electricity generating equipment.But the clearest
and most important indication that applying the 100/250 thresholds
literally in the case of GHG emissions would undermine congressional
intent comes in considering the emissions profile of the small-sized
boilers. Congress focused closely on identifying which sources with
emissions in excess of 100 tpy should not be subject to PSD even though
they are subject to CAA requirements generally. But Congress viewed a
large set of sources as emitting below 100 tpy and therefore not
included in the PSD program and, indeed, not even subject to debate as
to whether they should be included in the PSD program. Chief among
these sources, in terms of absolute numbers of sources, were small
boilers. The Steigerwald-Strelow memorandum identified two categories
of these boilers, differentiated by size. The first ranges in size from
10 to 250 x 10\6\ Btu/hr, and has a ``typical plant'' size of 10\7\
Btu/hr, with ``BACT emissions from typical plant'' of 53 tpy, and a
total of 1,446 sources in the category. The second category ranges in
size from 0.3 to 10 x 10\6\ Btu/hr, and has a ``typical plant'' size of
1.3 x 10\6\ Btu/hr, with ``BACT emissions from typical plant'' of 2
tpy, and a total of 11,215 sources in the category. The memorandum
discusses these two categories in the context of explaining which
source categories exceed a size of 100 tpy--and therefore would be
subject to PSD if a 100 tpy threshold were set--by stating,
``Fortunately, most truly small boilers and typical space heating
operations would not be covered.'' 122 Cong. Rec. 24549 (July 29,
1976). However, if the CO2 emissions of these small boilers
are considered, then most of them would be subject to PSD. In general,
most boilers of these small sizes are fired with natural gas, and a
natural gas boiler greater than 0.5 x 10\6\ Btu/hr emits at least 250
tpy CO2. As a result, the small commercial and residential
sources that include these boilers would become subject to PSD, and
this would directly contravene Congress's intention to limit PSD to
``industrial plants of significant impact.'' 122 Cong. Rec. 24548-49
(statement of Sen. McClure). The legislative history also provides a
window into the scope of the program that Congress anticipated and
related administrability concerns. According to the Steigerwald-Strelow
memorandum, the number of new sources each year whose ``BACT emissions
from typical plant'' exceed 100 for the 28 listed source categories and
250 for all other source categories is less than 100 per year. Although
the Steigerwald-Strelow memorandum does not attempt to estimate the
number of modifications, it appears that based on this information,
Congress had reason to expect the total size of the PSD program to be
measured in the hundreds of permits each year. A program of this size
would be manageable by EPA and the permitting authorities.
---------------------------------------------------------------------------
\17\ Note that although Congress specifically authorized the
States to exempt ``nonprofit health or education institutions'' from
the definition of ``major emitting facility,'' this statement by the
D.C. Circuit should be taken as the Court's view that Congress did
not design PSD to cover sources of the small size described.
---------------------------------------------------------------------------
The D.C. Circuit based its holding in Alabama Power that potential-
to-emit for purposes of the applicability thresholds should be defined
as
[[Page 55310]]
emissions at full capacity with implementation of control equipment, in
part on its view that with this definition, the number of sources
subject to PSD would be manageable:
Though the costs of compliance with section 165 requirements are
substantial, they can reasonably be borne by facilities that actually
emit, or would actually emit when operating at full capacity, the large
tonnage thresholds specified in section 169(1). The numbers of sources
that meet these criteria, as we delineate them, are reasonably in line
with EPA's administrative capability.
Alabama Power, 636 F.2d at 354 (emphasis added). However, applying
the thresholds literally to GHG emissions would increase the size of
the PSD program far beyond what Congress had reason to expect and what
the D.C. Circuit evidently had in mind. Returning to the Steigerwald-
Strelow table, applying the thresholds literally would bring into PSD
the great majority of the small boilers constructed each year, which
numbered, in total, 12,661. Adding more sources from other source
categories, and, most importantly, modifications, indicates that the
size of the PSD program would very likely be at least an order of
magnitude greater than what Congress intended. At least for an initial
period of time, until streamlining methods could be developed, these
numbers of sources would be well beyond the ``administrative
capability'' that the D.C. Circuit described EPA as having.
(3) Absurd Results
Applying the PSD thresholds to sources of GHG emissions literally
results in a PSD program that is so contrary to what Congress had in
mind--and that in fact so undermines what Congress attempted to
accomplish with the PSD requirements--that it should be avoided under
the ``absurd results'' doctrine. As described above, Congress designed
the PSD program as a mechanism to allow construction of new sources and
expansion of existing sources in areas meeting the NAAQS, but only
after those sources, on a source-by-source basis, undertook analyses to
demonstrate that their emissions would not significantly deteriorate
air quality and implemented controls representing BACT. Recognizing
that PSD imposed significant costs on sources, Congress constructed a
statutory scheme that it viewed as limiting PSD to large industrial
sources that could bear the financial costs and that caused most of the
pollution problem. These limits were the 100/250 tpy thresholds.
Congress had reason to expect that with these thresholds, the program
would approximate the size of the current PSD program, which numbers in
the hundreds of sources each year. Throughout its deliberations,
Congress focused primarily on emissions of conventional pollutants.
But applying the 100/250 tpy thresholds literally to sources of
CO2 would sweep aside this carefully designed construct by
bringing in tens of thousands of sources of a different type and much
smaller size than Congress had in mind: Commercial and residential
sources whose primary--if not sole--source of emissions is
CO2 from small boilers that primarily provide heat.
Moreover, applying the thresholds literally would bring in many
additional sources in the source categories Congress expected PSD to
apply to, but of a size Congress expected to be below the cut-off.
Congress did not intend to apply PSD to these sources because of the
expenses that compliance with PSD entails and because Congress did not
view these sources as causing a sufficiently great part of the
pollution problem. Including these sources would also expand the PSD
program to well beyond what Congress had reason to expect, and what
permitting authorities can administer.
The administrability problems lead the results of applying the
thresholds literally beyond contravening congressional intent and into
actually undermining congressional intent. At least for an initial
period, until streamlining methods could be developed, the
extraordinary number of sources subject to PSD would preclude the
permitting authorities from processing permit applications for all
sources, including those that Congress intended be subject to PSD.
Because PSD is a preconstruction program, those sources would face many
years of delay before they could construct or modify, which would
undermine congressional intent to allow economic growth in PSD areas.
These results are the types of ``absurd results'' from a literal
reading of statutory provisions that courts have declined to sanction.
b. Title V
For title V, the application of the absurd results doctrine
parallels that of PSD. First, a literal application of the 100 tpy
threshold requirement in CAA Sec. Sec. 502(a), 501(2)(B), and 302(j)
would be in tension with a specific CAA requirement, that of CAA Sec.
503(c), which imposes a time limit of 18 months from the date of
receipt of the completed permit application for the permitting
authority to issue or deny the permit. It would be flatly impossible
for permitting authorities to meet this statutory requirement if their
workload increases from some 14,000 permits to 6.1 million. Instead,
permit applications would face multi-year delays in obtaining their
permits.
Moreover, these delays would undermine the overall statutory design
that promotes the smooth-running of the permitting process, and the
very purpose of the title V program itself. As noted elsewhere,
Congress intended through title V to facilitate compliance by
establishing an operating permit program that requires the source to
combine in a single permit all of its CAA requirements. Congress
established a comprehensive process to implement the operating permit
program. Through this process, following the date that sources become
subject to title V, they have 1 year to submit their permit
applications. CAA Sec. 503(c). As noted, the permitting authority then
has 18 months to issue or deny the permit. CAA Sec. 503(c). Permitting
authorities must provide an opportunity for public comment and a
hearing. CAA Sec. 502(b)(6). If the permitting authority proposes to
issue the permit, the permitting authority must submit the permit to
EPA, and notify affected States, for review. CAA Sec. 505(a)(1). EPA
then has 45 days to review the permit and, if EPA deems it appropriate,
to object to the permit. CAA Sec. 503(b)(1). If EPA does object, then
the permitting authority must, within 90 days, revise it to meet the
objections, or else EPA becomes required to issue or deny the permit.
CAA Sec. 503(c). If EPA does not object, then, within 60 days of the
close of the 45-day review period, any person may petition EPA to
object, and EPA must grant or deny the petition within 60 days. This
set of applicant, permitting authority, and EPA actions and deadlines
establishes the process for the prompt and efficient issuance of
operating permits for the appropriate universe of sources.
The legislative history of title V, enacted by Congress in the 1990
CAA Amendments, indicates that Congress expected the provisions to
apply to a much smaller set of sources than would become subject at a
100-tpy GHG threshold level. The Senate Committee report noted that
under the title V provisions that would be enacted, ``the additional
workload in managing the air pollution permit system is estimated to be
roughly comparable to the burden that States and EPA have successfully
managed under the Clean Water Act[,]'' under which ``some 70,000
sources receive permits, including more than 16,000 major sources.'' S.
Rep. 101-228,
[[Page 55311]]
at 353. Applying title V to GHG emitters at the 100-tpy threshold would
result in approximately 6.1 million sources becoming subject to title
V, which is far in excess of the number that Congress contemplated.
Moreover, the great majority of these sources will not be subject
to any CAA requirements, so that although they would need to apply for
and receive a permit, there would be no applicable requirements to
include in the permit and the exercise would not improve compliance.
But at least for an initial period, until streamlining methods could be
developed, the extraordinary numbers of these sources would sweep aside
Congress' carefully constructed program, with its multi-step process
and deadlines of as short as 45 days--and instead, backlog the permit
authorities for many years. Multi-year delays in issuance of all
permits would ensue, those for sources that have applicable
requirements and that Congress clearly intended the program to cover,
and for the millions of sources that are not subject to any applicable
requirements. Thus, as with PSD, a literal interpretation of the title
V threshold provisions would apply title V to millions of sources that
Congress did not intend be covered, and the ensuing administrative
burdens--at least initially--would impede the issuance of permits to
the thousands of sources that Congress did intend be covered. This
result is the type of ``absurd results'' from a literal application of
statutory provisions that the courts have held should be avoided.
c. Application of PSD and Title V Thresholds
Because a literal application of both the PSD and title V threshold
requirements produces absurd results, EPA may develop a different
application that promotes consistency with other statutory provisions
and is consistent with congressional intent. We believe that this
proposal would achieve these objectives by establishing a threshold for
the first phase at the level of 25,000 tpy CO2e, and
committing to vigorous efforts to streamline implementation of both
programs' requirements and to complete a study and then conduct further
rulemaking.
A first phase 25,000-tpy CO2e major source GHG
threshold, combined with vigorous efforts to develop streamlining
methods, is consistent with congressional intent for the PSD provisions
for several reasons. The 25,000-tpy CO2e threshold
reconciles the PSD provisions that, absent this regulation, would be in
tension with each other, and thereby maintains the overall functioning
of the PSD program. The threshold maintains the environmental purposes
of the PSD program, while allowing economic growth, as set forth in CAA
Sec. 160. As discussed elsewhere in this preamble, a majority of
stationary source GHG emissions in the U.S. come from a relatively
small number of high-emitting sources that would remain subject to PSD
because they emit at or above the 25,000-tpy CO2e threshold.
By comparison, about 75 percent of stationary source GHG emissions come
from all sources above 250 tpy. Accordingly, the 25,000-tpy
CO2e threshold would, during this first phase, exempt from
PSD numerous small sources that emit only about 7 percent of GHGs, and
that smaller amount of emissions coverage would not jeopardize the
environmental protection goals of PSD. Moreover, the program will
remain of a manageable size, so that permitting authorities will be
able to process permit applications and issue permits, which sources
must have to construct or expand. As discussed elsewhere, the
information available to us indicates that the 25,000-tpy
CO2e level is the level closest to the statutory levels that
permitting authorities can reasonably administer during this initial
phase. The ``absurd results'' caselaw requires that if a statutory
provision cannot be applied literally, then it should be applied as
close to literally as possible, consistent with congressional intent.
With this level of 25,000-tpy CO2e, permitting authorities
would be able to reasonably comply with the 12-month deadline
requirement for acting on PSD permit applications under CAA Sec.
165(c). Further, the first phase threshold of 25,000 tpy and the
development of streamlining methods is consistent with congressional
intent to limit the PSD program--with the high costs that result from
its source-by-source applications--to sources that can bear the costs.
The first phase would allow for the implementation of streamlining
methods, which could facilitate the orderly development of the program
by reducing the costs of compliance for sources of GHG emissions. In
addition, the first phase threshold maintains the program at a
manageable size so that permitting authorities will be able to continue
to timely issue permits to sources seeking to construct or expand.
The first phase 25,000-tpy CO2e threshold, combined with
the development of streamlining methods and the study and subsequent
regulations, is also consistent with the purposes of the title V
provisions. This first phase would assure a manageable size for the
program so that permitting authorities could continue to issue permits
to sources with applicable CAA requirements, as Congress intended. The
implementation of streamlining methods--in particular, general
permits--could facilitate the orderly development of the title V
program to include a broader set of sources based on their GHG
emissions.
B. ``Administrative Necessity'' Doctrine
1. Overview
Once EPA takes regulatory action to trigger PSD and title V
requirements for GHG emitters, a literal application of the PSD and
title V applicability requirements (i.e., the 100/250-tpy PSD major
stationary source threshold and a ``zero'' significance level
threshold, and the 100-tpy title V threshold) would result in a volume
of permit applications that is so high that the PSD and title V
programs would become impossible for State and Federal authorities to
administer. The PSD and title V permitting processes would become
overwhelmed and essentially paralyzed.
Under these circumstances, the judicial doctrine of administrative
necessity authorizes EPA to undertake a process for rendering the PSD
and title V requirements administrable. As part of this process, EPA
must consider ways to streamline the PSD and title V definitions and
operative requirements so that the permitting authorities may more
efficiently process the expected influx of GHG permit applications.
These streamlining methods may include refinements to the definition of
PTE and issuance of some form of general permits with presumptive BACT.
See section VII.A of this preamble for a description of what these
streamlining methods entail for PSD and title V programs, respectively.
However, the development, adoption, and implementation of these
streamlining approaches would take several years, and, upon their
completion, would still leave permitting authorities confronting a
sufficiently large increase in workload that, absent a corresponding
increase in resources, would continue to render the PSD and title V
programs impossible to administer. See section VII of this preamble for
an explanation of the procedures and timeframes necessary to develop
these streamlining techniques.
As a result, under the doctrine of administrative necessity, EPA is
authorized to phase in the PSD and title V requirements in as refined a
manner as possible, so as to allow
[[Page 55312]]
administration of the PSD and title V programs. As part of the first
phase, EPA proposes to establish the thresholds at the levels proposed,
as well as undertake streamlining as much as possible and as quickly as
possible, and explore with permitting authorities methods to ramp up
resources for processing GHG permit applications. EPA also commits to
conduct an assessment of the administrability issue within 5 years and,
by the end of 1 year later, promulgate the second phase of the
tailoring process, which would include the thresholds and streamlining
methods determined at that time to be appropriate.
2. Chevron Standard for Statutory Interpretation
As noted above, the PSD requirements apply to the construction and
modification of a ``major emitting facility,'' CAA Sec. Sec.
165(a)(1), 169(2)(C), which is defined as a ``stationary source[ ] [in
one of 28 listed categories of sources] of air pollutants which
emit[s], or ha[s] the potential to emit, one hundred tons per year or
more of any air pollutant'' or ``any other source with the potential to
emit two hundred and fifty tons per year or more of any air
pollutant,'' with certain exceptions. CAA Sec. 169(1). The title V
requirements apply to any ``major source,'' CAA Sec. 502(a), which is
defined to include ``any stationary facility or source of air
pollutants which directly emits, or has the potential to emit, one
hundred tons per year or more of any air pollutant.'' CAA Sec. Sec.
501(2)(b), 302(j).
Although these applicability provisions are clear by their terms,
the Courts have held that the Chevron approach of applying the literal
language of the provisions may not apply when the administrability of
the provisions is at issue.
3. Doctrine of Administrative Necessity
a. Administrative Necessity Doctrine in the Context of Chevron
The Courts have acknowledged the administrative necessity doctrine
as an overlay on the Chevron doctrine of statutory construction, so
that even when a statutory requirement expresses a clear congressional
intent, if the provision is impossible for the agency to administer,
then the agency is not required to follow the literal requirements, and
instead, the agency may adjust the requirements in as refined a manner
as possible to assure that the requirements are administrable, while
still achieving Congress's overall intent. As discussed below, the D.C.
Circuit set out the doctrine of ``administrative necessity'' in a line
of cases that most prominently includes Alabama Power v. Costle, 636
F.2d 323 (D.C. Cir. 1980). The Court cited the doctrine most recently
in New York v. EPA, 443 F.3d 880, 884, 888 (D.C. Cir. 2006).\18\
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\18\ It should be noted that numerous cases have held that an
agency may consider administrative factors in choosing regulatory
policies under statutory provisions that authorize choices. See,
e.g., National Mining Association v. EPA, 59 F.3d 1351, 1364 (D.C.
Cir. 1995); Phillips Petroleum Co. v. EPA, 803 F.2d 545, 562 (D.C.
Cir. 1986); National Wildlife Federation v. Gorsuch, 693 F.2d 156,
182 (D.C. Cir. 1982). While these cases support the general
proposition that administrative considerations are important, they
differ from the ``administrative necessity'' doctrine because in
those cases, the Agency's actions were within the ambit of the
statutory language; whereas under the ``administrative necessity''
doctrine, the Agency's actions depart from the statutory language.
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b. Alabama Power
The Court provided its most robust expression of the
``administrative necessity'' doctrine in the seminal decision, Alabama
Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1980) (Alabama Power), a
case that resolved industry and citizens group challenges to many
aspects of the regulations EPA promulgated shortly after enactment of
the 1977 CAA Amendments to implement the newly enacted statutory
provisions. One regulatory provision purported to exempt sources that
qualified as major emitting facilities if their actual emissions were
50 tpy or less. EPA sought to justify this provision on grounds that
some 2,400 major emitting facilities emit 50 tpy or less, and that the
large burdens on the agency and industry of permit development and
review would outweigh the small benefits of permitting. The Court
invalidated this regulatory exemption as not authorized by the statute,
but in so doing, recognized EPA's concerns about administrative burdens
and, anticipating future agency efforts to adjust statutory mandates to
administrative realities, went on to articulate the basis for the
administrative necessity doctrine.\19\ 636 F.2d at 356-57.
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\19\ The Court also explained that in that case, EPA's concern
that large numbers of small sources would be subject to PSD was
misplaced because it was based on an erroneous interpretation of the
requirement that the threshold for determining whether a source was
a major emitting facility (and thereby subject to PSD) was the
source's PTE. EPA erroneously believed that PTE had to be calculated
without reference to pollution controls, an interpretation that
would have meant that many sources of a low level of actual
emissions would be treated as major emitting facilities. The Court
held, in another part of the Alabama Power opinion, that PTE must be
calculated with reference to pollution controls, and went on to
observe that this holding effectively mooted EPA's concerns that
underlay its effort to exempt 50-tpy-or-less sources from PSD
requirements.
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First, the D.C. Circuit described the basis for the administrative
necessity doctrine as, in effect, an overlay on clear statutory intent.
Specifically, in a section of the opinion titled, ``Exemptions Born of
Administrative Necessity,'' the Court stated:
Certain limited grounds for the creation of exemptions are
inherent in the administrative process, and their unavailability
under a statutory scheme should not be presumed, save in the face of
the most unambiguous demonstration of congressional intent to
foreclose them.
Id. at 357.
Second, the Court identified several types of administrative relief
that may be available to an agency. One is ``[c]ategorical exemptions
from the clear commands of a regulatory statute,'' which the court
stated are ``sometimes permitted,'' but emphasized ``are not favored.''
Id. at 358. A second is ``an administrative approach not explicitly
provided in the statute,'' such as ``streamlined agency approaches or
procedures where the conventional course, typically case-by-case
determinations, would, as a practical matter, prevent the agency from
carrying out the mission assigned to it by Congress.'' Id. A third is a
delay of deadlines upon ``a showing by [the agency] that publication of
some of the guidelines by that date is infeasible.'' Id. at 359
(quoting NRDC v. Train, 510 F.2d 692, 712 (D.C. Cir. 1974).
Finally, the Court explained it would evaluate whether the agency
faced an administrative impossibility, and the acceptability of the
agency's choices, based on the essential circumstances confronting the
agency, including the volume and nature of the tasks required of the
agency, its financial and personnel resources, and the time available
to it. Specifically, the Court observed that the administrative
necessity doctrine would apply based on the ``administrative need to
adjust to available resources * * * where the constraint was imposed *
* * by a shortage of funds * * *, by a shortage of time, or of the
technical personnel needed to administer a program.'' Id. at 358. The
Court added that another administrative constraint could be ``the
degree of administrative burden posed by enforcement.'' Id. at 405. See
NRDC v. Train, 510 F.2d 692, 712 (D.C. Cir. 1974) (recognizing
constraints imposed by budgetary commitments, manpower demands, or
inability to evaluate sufficiently the necessary scientific and
technical determinations).
Even so, the Court went on to caution that ``administrative
necessity'' is a high hurdle: ``[T]he agency [bears] a heavy
[[Page 55313]]
burden to demonstrate the existence of an impossibility.'' Id. at 359.
The Court particularly noted its reticence to uphold agency claims of
administrative impossibility when those claims are made in advance of
actual efforts to administer or enforce: ``The agency's burden of
justification in such a case is especially heavy.'' Id. at 359.
In Alabama Power, the D.C. Circuit emphasized that its exposition
of the administrative necessity doctrine was consistent with U.S.
Supreme Court decisions holding that administrative considerations
could factor into agency decisions. The D.C. Circuit noted that the
Supreme Court, in Permian Basin Area Rate Cases, 390 U.S. 747 (1968),
``approv[ed] the adopting by the FPC of area rate regulation as the
practical means to regulate thousands of natural gas producers,'' and
quoted the Supreme Court as explaining, ``[c]onsiderations of
feasibility and practicality are certainly germane to the issues before
us. * * * We cannot, in these circumstances, conclude that Congress has
given authority inadequate to achieve with reasonable effectiveness the
purpose for which it has acted.'' Alabama Power, 636 F.2d at 359
(citing Permian Basin Area Rate Cases, 390 U.S. at 777). The Court in
Alabama Power also cited Morton v. Ruiz, 415 U.S. 199, 230-31 (1973),
in which the Supreme Court ``acknowledged the substantive authority of
the Secretary [of the Bureau of Indian Affairs] to take appropriate
action to cope with the administrative impossibility of applying the
commands of the substantive statute. Alabama Power, 636 F.2d at
359.\20\
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\20\ Although Alabama Power presented the D.C. Circuit's most
robust exposition of the administrative necessity doctrine, the
Court first identified the doctrine, albeit in the relatively narrow
application of a deadline extension, in the 1974 decision, NRDC v.
Train, 510 F.2d 692 (D.C. Cir. 1974). There, the Court considered
EPA objections that it would be unable to meet a statutory
requirement that established a deadline for promulgating effluent
limitations. While declining to grant extensions of the deadline in
that case, the Court acknowledged that under certain circumstances,
judicial relief in the form of a deadline extension would be
warranted in light of administrative considerations. The Court
observed that ``budgetary commitments and manpower demands'' needed
to meet a deadline could be ``beyond the agency's capacity or would
unduly jeopardize the implementation of other essential programs;''
and that ``EPA may be unable to conduct sufficient evaluation of
available control technology'' by the deadline. Under these
circumstances, the Court stated, ``[t]he courts cannot responsibly
mandate flat * * * deadlines * * *.'' The Court grounded its
conclusion, that a court could consider administrative
considerations in evaluating an agency's claimed inability to meet a
statutorily mandated deadline, in a court's equitable powers to
fashion appropriate relief. Id. at 713 (citations omitted). Although
the NRDC v. Train decision concerned the agency's compliance with
deadlines, which are a relatively narrow issue, the case established
the proposition that an agency may, under certain circumstances,
depart from a statutory mandate due to administrative
considerations.
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It should be emphasized that the Court in Alabama Power discussed
the ``administrative necessity'' doctrine in the context of PSD
applicability, which, along with title V applicability, is the subject
of this action. The Court discussed the doctrine extensively in the
part of its opinion that followed its invalidation of EPA regulations
that attempted to overlay an exemption for PSD applicability onto
statutory requirements, where the Court stated it was anticipating
future agency efforts to adjust statutory mandates to administrative
realities. Id. at 356-57. Moreover, the Court made clear in another
part of its opinion that the doctrine could be applied to another
aspect of PSD applicability, concerning existing sources. There, the
Court stated:
EPA does have discretion, in administering the statute's
``modification'' provision, to exempt from PSD review some emission
increases on grounds of de minimis or administrative necessity.
Id. at 400.
c. Case Law After Alabama Power
Shortly after Alabama Power, the D.C. Circuit reiterated the
validity of the ``administrative necessity'' doctrine in EDF v. EPA,
636 F.2d 1267 (D.C. Cir. 1980), which reviewed the legality of EPA's
regulation of polychlorinated biphenyls (PCBs) under the Toxic
Substances Control Act. As the Court noted, ``The statutory language is
simple: ``no person may * * * use any polychlorinated biphenyl in any
manner other than in a totally enclosed manner.'' 15 U.S.C.
2605(e)(2)(A). Similarly, the prohibitions on manufacture, processing,
and distribution refer to ``any polychlorinated biphenyl.'' See id.
Sec. 2605(e)(3)(A).'' EDF v. EPA, 636 F.2d at 1281. EPA's regulations
exempted materials containing concentrations of PCBs less than 50 parts
per million (ppm). EPA justified the 50-ppm cutoff as an exemption
based on administrative necessity. The Court reiterated that such an
exemption was at least potentially available. Quoting Alabama Power,
the Court stated:
Under the heading of ``administrative necessity,'' this court
has recognized that an agency may depart from the requirements of a
regulatory statute. * * * While the court in Alabama Power
emphasized that ``categorical exemptions from the clear commands of
a regulatory statute, though sometimes permitted, are not favored.''
Id. at 358-360, it also noted that there is ``substantive authority
(for an agency) to take appropriate action to cope with the
administrative impossibility of applying the commands of the
substantive statute.'' Id. at 358-359.
EDF v. EPA, 636 F.2d at 1283. However, on the facts before it, the
Court found that EPA had not ``made [a] showing that it cannot carry
out the statutory commands for concentrations of PCBs below fifty
ppm,'' and therefore that ``EPA [had] fail[ed] to meet its heavy
burden. Thus, administrative need, on this record, provides no basis
for the fifty ppm cutoff.'' Id.
Some 3 years later, the D.C. Circuit handed down a decision
concerning the ``administrative necessity'' doctrine in Sierra Club v.
EPA, 719 F.2d 436, 463 (D.C. Cir. 1983). There, the Court reviewed
EPA's efforts to justify a narrow regulatory definition of ``dispersion
techniques'' on administrative necessity. CAA Sec. 123 prohibits the
use of tall stacks and ``other dispersion techniques'' to meet
emissions limitations. The Court found that the term ``dispersion
techniques'' should be defined broadly ``to encompass * * * the use of
devices, alterations to the stack, or other techniques when they are
significantly motivated by an intent to gain emissions credit for
greater dispersion.'' Id. at 462. EPA's regulations defined the term
narrowly to include only certain types of equipment, and not to require
an inquiry into intent. The Court observed, that ``[s]ince the
regulations do not regulate all the techniques contained in this
definition, the regulations effectively create an exemption not
indicated in the statute itself. Such categorical exemptions are
generally not favored * * * but there are two situations in which they
are allowed: Cases of administrative necessity and de minimis
situations'' (citing Alabama Power). Id. Thus, the Court affirmed that
the doctrine of ``administrative necessity'' could be used to allow an
agency to depart from the requirements of the statute.
The Court went on to find, however, that in this case, EPA's
justification for ``administrative necessity'' was not sufficient. EPA
had explained that defining ``dispersion techniques'' more broadly to
necessitate inquiring into a source's subjective intent as to whether
other equipment or methods were designed to disperse emissions, as
opposed to achieving some other end, would be ``difficult'' to enforce,
a conclusion generally supported by a few State and local agencies that
commented on the rule. The Court found that the Agency's narrow
definition of ``dispersion techniques'' amounted to a
[[Page 55314]]
categorical exemption from statutory requirements, and one that was
based on Agency predictions of future enforcement difficulties rather
than actual experience. The Court reiterated its statements in Alabama
Power under these circumstances, that the Agency's burden of showing
impossibility is especially heavy, and that in this case, EPA's showing
``falls far short.'' Id. at 463. The Court added that EPA may be able
to develop ``less taxing'' ways to define ``dispersion techniques,''
including developing classes of plant techniques that could be
considered to be dispersion techniques. Id.\21\
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\21\ Shortly after Sierra Club, the D.C. Circuit considered
another case that raised an ``administrative impossibility'' issue,
Northern Colorado Water Conservancy Dist. v. FERC, 730 F.2d 1509
(D.C. Cir. 1984) (NCWCD). However, there the Court did not appear to
follow the line of cases that included Alabama Power. In NCWCD, the
Court found that the Federal Energy Regulatory Commission (FERC)
improperly failed to comply with requirements under section 4(f) of
the Federal Power Act to give written notice to local water
authorities of preliminary permit applications filed by private
developers for a hydroelectric power project. In failing to give
notice, FERC had followed a longstanding, but unannounced policy,
which it justified in part on grounds ``that strict adherence to the
statute's language would be administratively impossible.'' FERC
explained that the requirement to notify municipalities required
administrative flexibility in light of the ``estimated 50,000
specialized local governmental units performing a myriad of
services,'' many of which, ``such as water, utility or drainage
districts, are not readily identifiable.''
The Court rejected FERC's contention that those administrative
concerns justify FERC's practices. Without citing Alabama Power or
any of its other decisions concerning the ``administrative
necessity'' doctrine, the Court stated that those practices must
nevertheless remain ``within a range of reasonableness with respect
to Congress' instruction,'' that is, within the ambit of the
statutory requirements, as well as be reasonably well articulated
and generally made known to the public, and that in this case,
FERC's practices failed on all those counts. 731 F.2d at 1521.
Notwithstanding this case, the weight of the D.C. case law supports
the availability of the administrative necessity doctrine to
authorize agency departure from statutory requirements in limited
circumstances.
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In 1989, in Public Citizen v. FTC, 869 F.2d 1541 (D.C. Cir. 1989),
the D.C. Circuit reiterated the validity of the ``administrative
necessity'' doctrine, although on the facts, the Court held that the
Federal Trade Commission's (FTC) claims of administrative necessity
failed. There, the Court considered the Smokeless Tobacco Act, which,
according to the Court, ``imposes a blanket requirement, subject only
to one narrow and specifically mentioned exception for billboard
advertising, that producers and distributors of smokeless tobacco
products must include a warning label whenever they `advertise * * *
any smokeless tobacco product.' 15 U.S.C. 4402(a)(2).'' Id. at 1553. In
the face of this provision, the FTC issued an exemption for utilitarian
items (ranging from golf balls to T-shirts) distributed for promotional
purposes, so that such objects would not need to include the warning
label. The FTC attempted to justify the exemption on grounds of
administrative necessity. The Court acknowledged the doctrine, stating
that ``there exists a narrow range of inherent discretion in an agency
to create case-by-case exceptions in order to come within the practical
limits of feasibility in administering a statute.'' Id. at 1556 (citing
Alabama Power) (emphasis added by Court). However, the Court went on to
dismiss the FTC's claims of administrative necessity, stating that the
FTC had not justified its application and suggesting that the FTC had
improperly undertaken a cost-benefit analysis in the guise of an
administrative necessity claim. Id.
d. Analogous Case Law Concerning Other Legal Obligations
There is another line of case law, which involves contempt-of-court
proceedings, in which the Courts recognize that impossibility of
performance is relevant to the lawful discharge of legal obligations,
and this case law provides some analogous support to the administrative
necessity doctrine. In contempt-of-court proceedings, as the Supreme
Court has noted, ``a defendant may assert a present inability to comply
with the order in question'' and may thereby be excused from the duty
to comply. U.S. v. Rylander, 460 U.S. 752, 757 (1983) (citing Maggio v.
Zeitz, 333 U.S. 56, 75-76 (1948); Oriel v. Russell, 278 U.S. 358, 366
(1929)) (emphasis in original) (``Rylander''). In addition, as
discussed below, this doctrine applies fully to administrative
agencies, providing even closer analogous support for the doctrine of
administrative necessity. Even so, it should be acknowledged that the
extent of support is limited because the contempt-of-court line of
cases involves a court's equitable discretion in enforcing court
orders, and the administrative necessity line of cases involves the
extent to which a Court will allow deviation from explicit statutory
requirements.
In Rylander, which involved a corporate officer's failure to comply
with a civil contempt order imposed for noncompliance with an earlier
order enforcing an IRS summons, the Court stated that ``[w]hile the
court is bound by the enforcement order, it will not be blind to
evidence that compliance is now factually impossible. Where compliance
is impossible, neither the moving party nor the court has any reason to
proceed with the civil contempt action.'' Rylander, 460 U.S. at 757
(finding that contemnor failed to meet the burden of production
sufficient to establish an impossibility defense).
The D.C. Circuit, noting that ``[i]t is well established that
impossibility of performance constitutes a defense to a charge of
contempt,'' has recognized that the Court has an obligation to
``consider carefully a claim by the alleged contemnor that compliance
was impossible. * * * Although both the fact and duration of
noncompliance with [an] order are elements to be considered, the court
must consider as well [a party's] inability, without fault on its part,
to render obedience.'' Tinsley v. Mitchell, 804 F.2d 1254 (D.C. Cir.
1986) (quoting SEC v. Ormant Drug & Chemical Co., 739 F.2d 654, 656-57
(D.C. Cir. 1984)) (remanding to District Court to adjudicate
contemnor's claim of inability to pay fines).
Importantly, the doctrine is fully available to government
agencies, as the D.C. Circuit affirmed in Evans v. Williams, 206 F.3d
1292 (D.C. Cir. 2000). There, in a class action challenging conditions
at a public institution for the mentally retarded, the District of
Columbia failed to comply with deadlines set in a consent decree,
citing unanticipated ``financial problems of horrendous proportions.''
Id. at 1293. Discussing the district court's refusal to make
retroactive a modification of the consent decree ameliorating the
financial penalties for missing deadlines, the Court noted,
We do not of course suggest that a party may be relieved from the
obligation to comply with an injunction simply by making a motion
for a modification. But here the District claimed that it could not
comply, despite making a good faith effort to do so. If true, this
should have relieved it from liability. See Tinsley v. Mitchell, 804
F.2d 1254, 1256 (D.C. Cir. 1986) (``If a party lacks the financial
ability to comply with an order, the court cannot hold him in
contempt for failing to obey.'')
Id. at 1299. Finding that the district court based its order on
irrelevant information regarding the District's financial
circumstances, the Court reversed and remanded for further proceedings.
Id.
The Courts have also recognized that a party may avoid compliance
with a court order by showing that it made a good-faith effort to
comply but fell short, and that under these circumstances, the party is
not required to demonstrate that compliance is absolutely impossible.
In Washington Metropolitan Transit Authority v. Amalgamated Transit
Union, 531 F.2d 617 (D.C. Cir. 1976), the D.C. Circuit vacated a final
contempt judgment and
[[Page 55315]]
fine against a labor union for continuing to strike in contravention of
a restraining order; among other procedural failings, the district
court made no findings of fact on the union's defenses of substantial
compliance and inability to comply. Id. at 619-20. In directing the
district court to provide adequate due process on remand, the court
emphasized, ``[e]valuation of good faith efforts to comply, once
raised, is necessary to determine the possibility of compliance. In our
view good faith should also be considered in mitigation of penalty.''
Id. at 621 (citation omitted).
This aspect of the doctrine is also fully applicable to agencies.
In Chairs v. Burgess, 143 F.3d 1432 (11th Cir. 1998), the Eleventh
Circuit emphasized that good-faith compliance efforts by a State agency
could support a claim for relief based on impossibility. There, the
State of Alabama was required under a consent decree to remove State
prisoners from a county jail within a certain timeframe. Id. at 1434.
The county sought a court order to enforce the decree and requested
that the Court hold the State in contempt. Id. In light of the fact
that the State was then subject to 79 identical court orders, the Court
accepted the State's defense of present inability to comply due to
``entirely inadequate'' resources in the State prison system. Id. at
1437. The Court vacated the district court's order, declaring: ``
`Inability,' as a defense to contempt, does not mean that compliance
must be totally impossible. Instead, the inability that will absolve a
party from being held in contempt requires only that the noncomplying
party has made `in good faith all reasonable efforts to comply' with
the terms of a court order.'' Id. (citations omitted).
3. Step-by-Step Process for Implementing the Administrative Necessity
Doctrine
We believe that the administrative necessity case law establishes a
three-step process under which an administrative agency may, under the
appropriate circumstances, in effect revise statutory requirements that
the agency demonstrates are impossible to administer so that they are
administrable. This section of the preamble describes the requirements
for each step, along with a brief application of each step to PSD
permitting thresholds and significance levels as well as title V
permitting thresholds.
In brief, the three steps are as follows: When an agency has
identified what it believes may be insurmountable burdens in
administering a statutory requirement, the first step the agency must
take is to evaluate how it could streamline administration as much as
possible, while remaining within the confines of the statutory
requirements. The second step is that the agency must determine whether
it can justifiably conclude that even after whatever streamlining of
administration of statutory requirements (consistent with those
statutory requirements) it conducts, the remaining administrative tasks
are impossible for the agency because they are beyond its resources,
e.g., beyond the capacities of its personnel and funding. If the agency
concludes with justification that it would be impossible to administer
the statutory requirements, as streamlined, then the agency may take
the third step, which is to phase in or otherwise adjust the
requirements so that they are administrable. However, the agency must
do so in a manner that is as refined as possible so that the agency may
continue to implement as fully as possible Congressional intent.
Step 1: Reduce administrative burdens by streamlining
administration as much as legally permissible. When an agency has
identified what it believes may be insurmountable burdens in
administering a statutory requirement, the agency must first evaluate
how it could streamline administration as much as possible, while
remaining within the confines of the statutory requirements. Sierra
Club, 719 F.2d at 463 (even if EPA's claims that its method for
enforcement ``is in fact impossible, there nevertheless may be less
taxing ways to enforce the law''); Alabama Power, 636 F.2d at 358
(``Courts frequently uphold streamlined agency approaches or procedures
where the conventional course, typically case-by-case determinations,
would, as a practical matter, prevent the agency from carrying out the
mission assigned to it by Congress'').
As discussed in detail below, EPA believes that it may have several
potentially useful tools available in the streamlining toolbox for the
PSD permitting threshold level, the PSD significance level, and the
title V permitting threshold. For the PSD permitting threshold level
and significance level, there are at least three such tools: The first
is interpreting the definition of ``potential to emit'' so that the
amount of a source's emissions that counts in determining whether it
qualifies as a major source and therefore is above the permitting
threshold requirements is closer to the amount of its emissions when it
is in actual operation, rather than the amount of emissions that the
source would emit if it were operating continuously. Narrowing the
definition of PTE is a potentially extremely important tool in this
context because identifying the amount of a source's emissions as
closer to its actual emissions in this manner would mean that very
large numbers of residential and commercial sources would have
significantly lower emissions and would fall below the statutory
threshold requirements for triggering PSD. Second, EPA believes it may
be able to develop programs involving general permits, under which
large numbers of similarly situated sources would each be covered by
essentially the same permit established through a regulatory action by
the permitting authority. This approach could achieve economies of
scale and thereby reduce administrative burden. Third, EPA believes it
may be able to streamline the single most time-consuming element of the
PSD permit program, which is the determination of BACT as required
under CAA Sec. 165(a)(4), by establishing presumptive BACT levels for
certain source categories that comprise large numbers of sources. As
for title V, as discussed below in detail, EPA believes that defining
``potential to emit'' to reflect more closely a source's actual
operation and developing a program of general permits could streamline
the administration of title V permits.
As also discussed below, these streamlining efforts cannot be
implemented as soon as PSD and title V are triggered, or even shortly
thereafter. However, EPA intends to develop these streamlining methods
as vigorously and as quickly as possible and phase them into the
program. These streamlining methods were described in the ANPR and EPA
received comment on them, and EPA is continuing to develop the methods
and to solicit further comment with this action.
Step 2: Determine that the task that remains is impossible to
administer. The agency must determine whether it can justifiably
conclude that even after whatever streamlining of administration of
statutory requirements the agency is able to effectuate, the agency's
remaining administrative tasks are impossible for the agency because
they are beyond its resources. To make this determination, the agency
must consider: (1) When it can complete streamlining administration of
the statutory requirements and how well it can administer those
requirements in the meantime; and (2) what administrative tasks would
remain after it achieves streamlining and how well it can handle those
tasks. To make this latter determination, the agency must compare its
resources to the tasks at
[[Page 55316]]
hand. The agency must then determine whether it can administer the
statutory requirements as mandated by Congress, or whether it may
justifiably conclude that those requirements remain impossible to
administer.
As discussed below, PSD and title V requirements will become
applicable to very large numbers of sources immediately following a
final rule regulating GHG emissions. EPA expects to complete such a
rule, establishing emissions limits for motor vehicles, by the end of
March 2010.
As discussed below, although EPA intends to aggressively develop
streamlining methods to the extent feasible, EPA simply does not have
time to do so prior to the date that we expect PSD and title V to
become applicable. As a result, EPA and the States will have to
implement PSD for those sources as soon as PSD is triggered.
Preliminary information that we have obtained concerning State
permitting authority resources, and data we collected concerning the
numbers of sources that emit GHGs (using both a CO2 and
CO2e basis) at the 100- and 250-tpy levels, make clear that
as of the date that PSD and title V applicability is triggered, the
number of sources needing permits would overwhelm permitting
authorities and thereby effectively paralyze the permitting.
Specifically, the total number of PSD permits that are issued in
the U.S. is approximately 280 per year. A permitting authority's action
on each PSD permit is resource-intensive because for each permit, the
authority must apply source-specific BACT, apply other source-specific
requirements, and allow public comment. However, EPA estimates that
when the PSD requirements are triggered for sources of GHGs, more than
40,000 PSD permits both from newly constructed facilities that emit at
greater than 250 tpy (using either a CO2 or CO2e
metric) and from modifications at existing major sources will be
required. Under the PSD program as presently constituted, permitting
authorities' actions on each of these permits will be resource-
intensive, as described above.
This volume of permitting represents more than a 140-fold increase
from the current volume--again, approximately 280 permits per year--of
major PSD permits that are processed by permitting authorities
nationwide. We estimate that this increase in volume of PSD permits
would require an annual increase in labor hours of almost 44 times the
current labor allocation for PSD programs. This increase in workload
would overwhelm the permitting authorities' resources and paralyze the
permit issuance process.
The problem for title V purposes is comparable. Specifically, the
total number of existing title V permits in the U.S. is approximately
14,700. However, EPA estimates that when the title V requirements are
triggered for sources of GHGs, approximately 6.1 million sources that
emit at least 100 tpy (using either a CO2 or CO2e
metric) will be required to obtain a title V permit. These sources will
be required to submit a permit application within 1 year, and the
permitting authorities will be required to act on those applications,
including allowing an opportunity for a public hearing.
We estimate that this additional volume of permitting would require
an annual increase in labor hours of almost 250 times the current labor
allocation for title V programs. Like the increase in PSD workload,
this increase in title V workload, combined with the source-by-source
nature of the permitting process and the requirements for public input,
would overwhelm the permitting authorities' resources and paralyze the
permit issuance process.
For both PSD and title V permits, permitting authorities would be
required to hire and train staff in numbers that are multiples of their
current staff, a task that cannot be accomplished--or, indeed, can
barely be begun--by the time PSD and title V requirements become
applicable to GHG emitters.
Step 3: Implement a scheme that is administrable, but in doing so,
depart from the statute as little as possible.
If the EPA concludes with justification that it would be impossible
to administer the statutory requirements, as streamlined, then the
agency may phase in or otherwise adjust the requirements so that they
are administrable. However, the agency must do so in a manner that is
as refined as possible so that the agency may continue to implement as
fully as possible congressional intent.
In this tailoring rulemaking, EPA is proposing, as the first phase,
to establish a temporary ``major stationary source'' threshold for PSD
purposes, a temporary ``significance level'' threshold for PSD
purposes, and a temporary ``major source'' threshold for title V
purposes, for sources that emit GHGs, to levels that capture a
significant share of GHG emissions while rendering both permitting
programs administratively feasible. The specific options proposed for
temporary thresholds and the rationale for their selection are
described below.
Moreover, and as explained in detail below, EPA intends to proceed
aggressively to develop streamlining methods, and it is possible that
permitting authorities will be able to augment their permitting
resources. Even so, available information does not confirm that EPA and
the permitting authorities will be able to rely on these steps within 6
years after PSD and title V requirements become applicable to GHG
emissions. Accordingly, it is necessary to maintain the major
stationary source threshold and significance level proposed and also
necessary to reassess the administrative situation and conduct further
rulemaking to address it within 6 years.
5. Consistency With Case Law
EPA's proposed application of the administrative necessity doctrine
to phase in the major source permitting thresholds for PSD and title V
purposes, and to establish the significance level for PSD purposes, is
consistent with the case law.
It is clear under the D.C. Circuit case law that the administrative
necessity doctrine is available under certain circumstances, to
authorize an agency to ``depart from the requirements of a regulatory
statute.'' EDF v. EPA, 636 F.2d at 1283 (citing Alabama Power). Thus,
it is clear that the doctrine may be applied--under the appropriate
circumstances--to authorize EPA to phase in the major source thresholds
for PSD and title V permitting as well as to establish a PSD
significance level. Indeed, the D.C. Circuit established the
administrative necessity doctrine, in Alabama Power, in the context of
efforts by EPA to establish thresholds for PSD permitting of new and
existing sources. Alabama Power, 636 F.2d at 357, 400.
The D.C. Circuit has emphasized, however, that the agencies have a
high threshold to justify the use of the doctrine, EDF v. EPA, 636 F.2d
at 1283, and the Court did not uphold the attempts by the agencies in
those cases to invoke the doctrine. EDF v. EPA, 636 F.2d at 1283;
Sierra Club v. EPA, 719 F.2d at 463; Public Citizen v. FTC, 869 F.2d at
1556.
We believe that the facts here are much more supportive of an
administrative necessity application than in those cases. EPA's
application of the administrative necessity doctrine hews closely to
the three-step process that we read the case law to establish.
Step 1: Reduce administrative burdens by streamlining
administration as much as legally permissible. In some of the case law
described above, the D.C. Circuit emphasized that the agencies had
failed to consider means of solving
[[Page 55317]]
their alleged administrative problems in ways consistent with the
statutory requirements. In Sierra Club v. EPA, the Court invalidated
EPA's effort to narrow the definition of ``dispersion techniques'' to
only certain types of equipment and thereby exempt from the definition
certain categories of methods that were intended to disperse emissions.
The Court based its holding in part on the grounds that EPA had failed
to explore available, ``less taxing'' regulatory alternatives that
would reduce the administrative burden of determining the purpose of
changes in stack or plume parameters. Sierra Club v. EPA, 719 F.2d at
463-64. The Court offered examples of possible streamlining measures,
such as quantifying the amount of plume rise that could be presumed to
have an engineering rationale, or selectively exempting classes of
improvements that have a trivial impact on the goals of the CAA or for
which use as a dispersion technique was only theoretically possible.
Id. at 464. Stating that ``[w]e see no evidence that EPA has adequately
explored these regulatory alternatives,'' the Court overturned EPA's
effective categorical exemption. Id.
The Court used similar reasoning in EDF v. EPA, where the Court
found that EPA's proposed 50-ppm cutoff for regulating PCBs was not
administratively necessary. EDF v. EPA, 636 F.2d at 155. There,
although basing its dismissal of the claim primarily on EPA's failure
to make a prima facie showing of impossibility, the Court emphasized
that statutorily authorized alternatives were available to EPA. See id.
at 154-156. ``While some cutoff may be appropriate,'' the Court noted,
``the Administrator did not explain why the regulation could not be
designed expressly to exclude ambient sources, thus directly fulfilling
congressional intent, rather than achieve that goal indirectly with a
cutoff, thereby partly contravening congressional intent.'' Id. at 154.
Here, in contrast, EPA has begun the process of narrowing the
administrative burden through means consistent with the statutory
requirements by evaluating what streamlining approaches would be
feasible but, as discussed below, this process is complex and EPA
cannot complete it for several years. EPA is soliciting comment on
those methods and any others that may occur to stakeholders or the
public. In NRDC v. Train, the Court indicated that an agency's
diligent, good-faith efforts to discharge its statutory
responsibilities will factor in favor of the Court's resolution of an
impossibility claim. NRDC v. Train, 510 F.2d at 333.
Step 2: Determine that the task that remains is impossible to
administer. In Alabama Power, the D.C. Circuit described the
administrative necessity doctrine as rooted in agency workload and
resources: Specifically, the Court stated that the administrative
impossibility doctrine would apply based on the ``administrative need
to adjust to available resources * * * where the constraint was imposed
* * * by a shortage of funds * * *, by a shortage of time, or of the
technical personnel needed to administer a program.'' 636 F.2d at 358.
The Court added that another administrative constraint could be ``the
degree of administrative burden posed by enforcement.'' Id. at 405.
However, the Court cautioned that ``the agency [bears] a heavy burden
to demonstrate the existence of an impossibility.'' Id. at 359.
In several of the cases described above, the D.C. Circuit
emphasized that the agencies had failed to meet their heavy burdens of
establishing administrative impossibility. In NRDC v. Train, EPA
neglected to specify the resource or methodological constraints that
prevented the agency from meeting a mandatory deadline for promulgating
effluent limitation guidelines. NRDC v. Train, 510 F.2d at 712-13.
Although the Court inferred from the imminent deadline that the Agency
would likely experience a burden on its resources in promulgating the
guidelines for most source categories, the Court was reluctant to grant
EPA an extension in response to a merely conclusory statement that
compliance with the deadline would be impossible. Id. at 713.
A few years later, in EDF v. EPA, the Court based its dismissal of
EPA's administrative necessity claim on the fact that the Agency did
not provide sufficient data to support the claim that administering the
statute as written was impossible. In that case, EPA failed to provide
information relating to the amount of PCBs that would be left
unregulated by its use of a 50-ppm cutoff, where the statute required
``any'' PCB to be prohibited. EDF v. EPA, 636 F.2d at 155. As a result,
EPA could not show that carrying out the statutory requirements for
concentrations of PCBs below 50 ppm would be administratively
impossible. Id. ``Thus,'' the Court found, ``administrative need, on
this record, provides no basis for the fifty ppm cutoff.'' Id.
Furthermore, the Court noted in a footnote that EPA's claim that the
burden to industry justified a categorical exemption was undermined by
EPA's lack of ``firm data'' on the extent of the burden. Id. at 155,
fn. 43.
Likewise, in Sierra Club v. EPA, EPA alleged only that it would be
``difficult'' to administer a proposed subjective intent test that
would examine whether dispersion techniques were used for the
prohibited purpose of achieving compliance with emissions limitations.
Without more, the Court determined, EPA's showing fell ``far short'' of
meeting the heavy burden of demonstrating the existence of an
impossibility. Sierra Club v. EPA, 719 F.2d at 461-62.\22\
---------------------------------------------------------------------------
\22\ In Public Citizen v. FTC, the D.C. Circuit dismissed FTC's
claims of administrative necessity where the agency's rationale for
its categorical exemption appeared to rely on an impermissible
weighing of the relative costs and benefits of compliance, rather
than on the impossibility of compliance. Public Citizen, 869 F.2d at
1556.
---------------------------------------------------------------------------
Thus, in the cases concerning administrative necessity, the
agencies generally did not attempt to quantify the administrative
workload and resource constraints that they thought merited departure
from the statutory requirements and instead limited themselves to
generally conclusory assertions. In NRDC v. Train, the Court recognized
that EPA could cure its insufficient record and demonstrate the
administrative impossibility of complying with the deadline once it
specified the actual burden on its resources. NRDC v. Train, 510 F.2d
at 713. In the event that EPA could demonstrate that ``manpower or
methodological constraints'' threatened to delay the promulgation of
guidelines for particular categories of sources, the Court held open
the possibility of an exemption from the deadline. Id. at 714.
Here, in sharp contrast to that case law, EPA has developed
specific factual evidence concerning the administrative difficulties of
implementing PSD and title V at the statutory threshold levels.
Moreover, those constraints are compelling; it is clear from just the
evidence collected so far that at the time that EPA expects to trigger
application of the PSD and title V programs to sources that emit GHGs--
which, if based on a possible mobile source final rulemaking, would be
near the end of March 2010--it will be flatly impossible for permitting
authorities to administer the PSD and title V programs at the statutory
threshold levels. The massive number of permits would overwhelm the
limited resources available to the permitting authorities. EPA expects
to collect as much specific information concerning administrability as
possible through the comment period.
[[Page 55318]]
The administrative burdens that EPA confronts in administering the
PSD and title V thresholds have no precedent in the case law. The
closest situation appears to be Alabama Power, where the Court rejected
EPA's interpretation of ``potential to emit'' as a matter of legal
interpretation, and not on administrative necessity grounds, but where
the Court noted that EPA's interpretation would have brought
approximately 2,400 additional facilities into the PSD program, which
entailed the case-by-case review and BACT determination for each permit
application. Alabama Power, 636 F.2d at 356. Even so, the PSD and title
V program burdens anticipated for GHG emitters at the statutory
thresholds are exponentially greater than the burdens alleged in
Alabama Power. The projected resource burden for administering the PSD
program alone will be greater than 10-fold the burden alleged in
Alabama Power: Each year, regulating GHGs under the CAA is estimated to
trigger PSD requirements for approximately 41,000 sources that emit at
levels greater than the 100/250-tpy threshold when they engage in new
construction or significant modifications. As for title V, in total,
some six million permits would be required, which would entail an
enormous expenditure of administrative resources, as described
elsewhere.
It should be acknowledged that the D.C. Circuit has stated that the
administrative necessity doctrine is particularly difficult to assert
when the agency had not yet tried to enforce the statutory
requirements. Sierra Club v. EPA, 719 F.2d at 463. Although the Court
did not spell out its reasoning for this distinction, a logical reason
would be that actual efforts to implement the statutory provision would
more clearly establish the extent of the administrative problems than
would advance predictions. Even so, the Court left the door open to
approving claims of administrative necessity in advance of actual
implementation efforts. Here, EPA does not propose to attempt to
administer the statutory thresholds once PSD and title V requirements
are triggered for GHG emitters, but the impact of the statutory
thresholds on permitting authority caseloads and resources are so
massive as to be predictable with a sufficient degree of accuracy to
support a claim of administrative necessity. EPA has gathered a
substantial amount of evidence concerning those impacts and intends to
gather more through the comment period on this notice. Under these
circumstances, it is not necessary to await actual implementation.
Attempting to do so--that is, allowing the statutory thresholds to
apply, assessing the extent of the administrative problem, and then
conducting rulemaking to raise the thresholds--would leave the PSD and
title permitting process in disarray for years.
Step 3: Phase-in the statutory requirements to be administrable,
but in doing so, depart from the statute as little as possible. In
Alabama Power, the D.C. Circuit listed the types of departures from the
statute that it would sanction, under the appropriate circumstances, on
grounds of administrative necessity. One is ``[c]ategorical exemptions
from the clear commands of a regulatory statute,'' which the Court
stated are ``sometimes permitted,'' but ``are not favored.'' A second
is an ``administrative approach,'' such as ``streamlined agency * * *
procedures'' in lieu of, for example, case-by-case determinations, and
a third is a delay of deadlines. 636 F.2d at 358.
Here, turning first to PSD, EPA is proposing to phase in the
threshold for PSD permitting, which would have the effect of allowing
sources that are above the statutory threshold of 100/250 tpy but below
the regulatory threshold of 25,000 tpy CO2e to build new
facilities or modify existing ones without being subject to PSD. Thus,
this proposal is a type of exemption.
Although the Court has said that ``categorical exemptions'' are
``not favored,'' the Court has indicated that they are ``sometimes
permitted,'' and the exemption at issue here is one that should be
permitted. For one thing, it is time limited. In addition, during phase
one of the phase-in period, establishing the thresholds at 25,000 tpy
CO2e and [10,000 to 25,000] tpy CO2e, and thereby
exempting sources from PSD applicability at the time that they
construct or modify, is the only way to address the administrative
burdens that would otherwise result at the time that PSD is triggered.
At that time, EPA will not have been able to develop any streamlining
methods, which is the second type of relief that the D.C. Circuit
identified in Alabama Power. Even so, this proposal is that, as quickly
as possible, during the next 6 years, EPA will implement as extensive a
streamlining of PSD requirements as possible (consistent with statutory
requirements) and then will reassess the administrative burdens and
conduct additional rulemaking concerning the thresholds and
streamlining techniques. This approach has the potential to limit the
extent of the exemption. It should be noted that a deferral of the
permitting obligation, which is the third type of relief that the D.C.
Circuit identified, would not be useful. For PSD purposes, because
sources cannot construct or modify without first obtaining a permit, a
deferral would prevent construction and modification activities. In
addition, a deferral would simply create a backlog that would quickly
become unmanageable at any foreseeable point in the future and would
create unacceptable uncertainty for the regulated community. In
particular, because sources cannot construct or modify without first
obtaining a permit, the backlog would prevent construction and
modification activities.
As discussed elsewhere, for PSD purposes, the 25,000-tpy and
[10,000 to 25,000] tpy CO2e levels proposed for the major
source permitting threshold and significance level, respectively, are
the lowest levels that we believe permitting authorities will be able
to administer for the upcoming 6-year period. By the end of the first 5
years, EPA will conduct a study and, within the following year, will
conduct another rulemaking to revisit and possibly revise those
thresholds, depending on the Agency's findings of the maximum extent to
which permitting authorities can administer the statutory program. In
this manner, the levels proposed are the least possible departure from
the statutory requirements.
For the title V purposes, the first phase threshold level of 25,000
tpy CO2e must also be considered to be the narrowest
possible departure from the statutory requirements because it is the
lowest amount that is administrable and because there are no other
choices. There is not enough time for EPA to develop streamlining
measures or for the States to ramp up resources. Although sources have
1 year to submit permit applications, and, once they submit them, they
receive the protections of the permit shield, failure to phase in the
threshold level would leave permitting authorities confronting an
influx of millions of permit applications that would begin within a
year. Little can be done during that year to meaningfully streamline
the program.
In addition, for title V purposes, the first-phase threshold must
be considered a deferral of, and not an exemption from, permitting
obligations because existing sources must apply periodically for a
title V permit. That is, if, during the second-phase rulemaking, EPA
lowers the threshold, sources that are able to avoid title V permitting
obligations under the first phase may be required to obtain a title V
permit.
[[Page 55319]]
C. Step-by-Step Process
In addition to the ``absurd results'' and ``administrative
necessity'' case law, a separate line of cases may be relevant for this
action: Cases that have held that agencies may approach problems one
step at a time. In these cases, the Courts have dismissed challenges to
agency actions that implement part of, but not the entirety of, a
statutory mandate, on grounds that agencies may proceed in an
incremental fashion. In these cases, the Courts emphasized that the
agency's partial action was a step in an overall path toward achieving
full implementation of the statutory mandate. We solicit comment on
whether this caselaw is supportive of our action in this notice.
In Massachusetts v. EPA, 549 US 497, 524 (2007), the U.S. Supreme
Court, in holding that EPA has authority under the Clean Air Act to
regulate GHG emissions, noted that ``[a]gencies, like legislatures, do
not generally resolve massive problems in one fell regulatory swoop.''
Instead, they may permissibly implement such regulatory programs over
time, ``refining their preferred approach as circumstances change and
as they develop a more nuanced understanding of how best to proceed.''
The D.C. Circuit, in Grand Canyon Air Tour Coalition v. FAA, 154
F.3d 455, 477-78 (DC Cir 1998), considered a challenge to the Federal
Aviation Administration's (``FAA'') final rule for reduction of
aircraft noise from sightseeing tours in Grand Canyon National Park.
There, the 1987 Overflights Act required the FAA to develop a plan
within 120 days for limiting aircraft overflights in order to achieve
substantial restoration of natural quiet. The Overflights Act further
required that the FAA implement the plan by regulation; and then,
within 2 years after the date of the plan, submit to Congress a report
discussing whether the plan had met the statutory goals or whether
revisions to the plan were needed. The FAA did issue a final rule--the
one that was challenged--but did not do so until 10 years after
enactment, and that rule required only partial action for limiting
overflights. At the same time that it issued the rule, the FAA proposed
two additional rules, and stated that the set of three rules together
would achieve substantial restoration of natural quiet in another 10
years. The Court upheld the final rule and declined to compel the FAA
to take additional action on a faster time frame. The Court explained:
We agree that it would be arbitrary and capricious for an agency
simply to thumb its nose at Congress and say--without any
explanation--that it simply does not intend to achieve a
congressional goal on any timetable at all. * * * But the FAA has
not taken that course here. It has never defended the Final Rule as
the sole means for restoring the natural quiet, but only as the
first of three steps. Its contemplation was that the three rules
together would achieve that goal [within 10 additional years].
Id.
Similarly, in City of Las Vegas v. Nevada Dev. Comm'n, 891 F.2d
927, 935 (DC Cir 1989), the Court upheld the Department of Interior's
emergency regulation listing as endangered species the tortoise
population in the Nevada portion of the Mojave Desert, even though the
regulation excluded the population in the Sonoran portion. The Court
found that ``agencies have great discretion to treat a problem
partially,'' and held that it would not strike down agency action ``if
it were a first step toward a complete solution.''
In these cases, the agencies were required to implement a statutory
directive through rulemaking. The D.C. Circuit upheld partial action by
the agencies when the Court considered it to be an initial step towards
meeting the directive. This action is set in a somewhat different
context. The statutory provisions at issue here--the PSD and Title V
applicability thresholds --provide that when GHG requirements are
triggered, GHG emitters must obtain permits. When the triggering event
occurs, the agency need take no further action before regulatory
consequences ensue; sources included within the PSD and Title V
programs must obtain permits once these statutory provisions are
triggered. However, as we have described, if sources are required to
apply for permits in accordance with the literal requirements of the
statute, the permitting authorities would not have the resources to
process those permits, and severe adverse results would occur. This
action would ameliorate that situation by establishing a process for
compliance with the statutory requirements. As discussed elsewhere,
this process consists of a first phase that entails establishing the
applicability thresholds at the specified levels, developing
methodologies for general permits and other streamlining approaches,
collecting data, preparing an assessment, and then promulgating
rulemaking for further action. This process would allow us to craft the
application of PSD and title V in ways that are achievable and
effectively balance the regulatory burdens with the reductions
achievable. In this sense, this action bears similarity to the agency
actions upheld by the D.C. Circuit as partial steps.
We solicit comment on whether this line of cases is relevant for
our action in this notice.
In particular, we solicit comment on whether an approach that
includes step-downs in the applicability thresholds, coupled with
regular examination of whether the administrative situation is
improving, is an appropriate way to achieve compliance while taking
into account the administrative imperatives. If so, we ask for
suggestions on how we could structure such an approach (e.g., when
future phases should begin, how we should determine the appropriate
thresholds for each phase, etc.) In addition, we solicit comment on the
level of detail with which we would be required to identify our path
towards facilitating full administration of the PSD and title V
applicability requirements in order for the Court to uphold our initial
steps under this case law. We also solicit comment on whether this
proposal establishes such a path with sufficient detail and, if not,
what further actions we should include in the final rulemaking or
commit to undertake in subsequent rulemaking.
D. What were the ANPR comments received on GHG tailoring options for
regulating GHG emissions under PSD and title V?
Responses to the ANPR give us some perspective of the initial views
of some of the permitting authorities, sources, and the public on
permit GHG tailoring options. Many of the ANPR commenters, including
representatives from States, environmental groups and industry,
recommended that EPA limit permitting, at least initially, to higher-
emitting sources. While there were few recommendations on specific
permitting levels, suggestions ranged from 10,000 to 100,000 tons per
year CO2. A number of environmental groups stated that if
the rationale for treating smaller sources differently relies on
principles of administrative necessity, the cutoff point should relate
to what is administratively feasible while maximizing the objectives of
the CAA.
Most industry stakeholders, representing a broad profile of
affected sources, stated that title V and PSD applicability for sources
of GHG emissions at current permitting thresholds would be economically
disastrous and would create regulatory gridlock. Alternatively, some
environmental groups opposed any temporary permitting thresholds,
stating that EPA does not have legal authority to change thresholds to
limit applicability.
Some States and environmental groups recommended streamlining
[[Page 55320]]
through the use of general permits and presumptive BACT. This option
was supported mostly by States, but one industry commenter also agreed
that it was an alternative worth pursuing if EPA insisted on regulating
GHG emissions under the current CAA. Some States noted that they have a
successful history of using general permits and believe the use of
general permits as well as presumptive BACT could be part of an
effective and reasonable approach to reduce regulatory costs and
administrative burdens. Other industry groups said that presumptive
BACT and general permits are unaffordable and require too much
negotiation, and EPA lacks authorization to use them.
States and industry commenters acknowledged that it would take a
significant amount of time to define presumptive BACT or general
permits for different categories, although some States said that, over
time, they have developed similar approaches to permitting with success
for non-GHG gases for certain source categories. Industry commenters
argued that the case-by-case review of permit applications that the NSR
program requires is the epicenter of NSR, and that a one-size-fits-all
approach will not mesh with the diversity of different manufacturing
industries of all sizes. Furthermore, even with the use of these
streamlining approaches, industry claims that there will still be tens
of thousands of previously unregulated sources who would need to
undergo PSD permitting. To review comments received on the ``Regulating
Greenhouse Gas Emissions Under the Clean Air Act'' ANPR (73 FR 44354,
July 30, 2008), see Docket ID No. EPA-HQ-OAR-2008-0318.
VII. Streamlining Options and Tools To Address the Administrative
Burdens of PSD and Title V for GHGs
As noted in earlier sections of this preamble, we believe that the
application of PSD and title V requirements to sources of GHG emissions
at current statutory thresholds would be administratively impossible at
the time that we expect PSD and title V requirements to be triggered
for those sources, which we expect to be the end of March 2010. These
requirements would also impose undue burdens on the sources. However,
we recognize that there are several streamlining techniques with the
potential to reduce over time the burdens on sources and the
administrative burdens of the PSD and title V requirements. We have
initially assessed the general availability and usefulness of the
streamlining techniques that are consistent with the statutory
requirements to address, manage and reduce the administrative burden on
permitting authorities. In addition, if we are compelled to promulgate
regulatory requirements that depart from the statutory requirements, we
recognize that we must do so to the smallest extent possible and must
remain as close as possible to congressional intent. Other of these
streamlining techniques may depart from the statutory requirements, but
they may be preferable to the extent that the departure is to a smaller
degree than raising the applicability thresholds.
However, as we will discuss below, we do not believe that we can
develop and implement any of these streamlining techniques in the near
term in the manner necessary to make the programs administrable at the
statutory PSD and title V permitting thresholds. Accordingly, at this
time, we cannot rely on these techniques in lieu of phasing in the
applicability thresholds in the manner that we propose. However, we
believe that these streamlining techniques should be an integral part
of a strategy during the first phase of the phase-in period--which
includes evaluating the threshold we propose to establish--to address
and reduce the burden on permitting authorities. Thus, during the first
phase, we plan to aggressively pursue further development of these
techniques, and we plan to implement as many of them for as many source
categories as possible and to do so as soon as possible. The
reassessment and additional rulemaking that we propose to undertake at
the end of the first phase will take into account the extent to which
these streamlining techniques, as well as the permitting authorities'
ability to enhance their resources, promote administrability. Moreover,
for smaller sources for which PSD and title V requirements would not
apply due to the increase in the major source applicability thresholds,
EPA will also assess and identify cost-effective opportunities
available in this notice to achieve GHG reductions through means other
than PSD (e.g., energy efficiency and other appropriate measures).
In section VII.A of this preamble, we discuss streamlining
techniques that either have been used or could potentially be used in
the PSD and title V programs. Some techniques may have applications to
both programs (e.g., general permits), while some are applicable to
only one program (e.g., presumptive BACT for PSD). In sections VII.B
and VII.C of this preamble, we describe the implementation of these
techniques as they relate both to permitting GHG emitters under current
PSD and title V permitting thresholds and to a broader GHG tailoring
strategy that involves the applicability thresholds proposed with this
action.
We solicit comment on the permit streamlining approaches discussed
in section VII.A of this preamble and also request information and
comment on any other tools or options that could address or reduce the
administrative burden of implementing PSD and title V for major GHG
sources and reduce the burdens on the sources.
A. Permit Streamlining Techniques for PSD and Title V
We believe that a strategy to address the administrative burden
associated with implementing the PSD and title V programs for sources
of GHGs could include one or more of the following permit streamlining
techniques or processes.
1. Redefining ``Potential to Emit''
Both PSD and title V requirements apply to ``major'' sources, and
``major'' sources are defined as sources that emit, on a PTE basis,
100/250 tpy for PSD purposes and, in general, 100 tpy for title V
purposes. PTE is basically defined as the maximum capacity of a source
to emit any air pollutant under its physical and operational design,
including legal limitations, if any, on, for example, emissions or
hours of operation. Many source categories have no legal limits on
their hours of operation and, as a result, are treated as if operating
24 hours per day, seven days per week--which totals 8,760 hours per
year--and emitting during that entire time. As a result, basing the
applicability thresholds on PTE, rather than on actual emissions, has
the effect of sweeping enormous numbers of additional sources into the
PSD and title V programs. For example, sources that do not in fact
operate for part of the year, but that have no legal limitation on
their operating hours, must calculate their PTE on the basis of the
amount of emissions that would result if those sources did operate, and
therefore emit, on a year-round basis.
However, sources in such situations may take legally and
practically enforceable limits on their operational parameters, by, for
example, agreeing to operate during only part of the year or during
only a limited number of hours per day, or employing control devices.
These limitations would lower the sources' PTE and thereby allow them
to avoid classification as ``major.'' PTE limits are already frequently
used in PSD and title V permitting programs. There, the permitting
authorities
[[Page 55321]]
typically apply PTE limits as a source-specific limit that is crafted
in a facility's minor source permit and tailored to the source's
individual circumstances.
This approach of reducing PTE to more closely approximate a
source's actual emissions--and, in the case of smaller sources, thereby
allowing the PTE to fall below the ``major'' source threshold that
triggers PSD or title V applicability--offers promise to significantly
reduce the number of sources subject to PSD and title V, and thereby
significantly ease administrability of those programs once GHG emitters
become subject to them.
This approach may be particularly suitable to sources in certain
categories of GHG-emitting, combustion-related, small sources that do
not operate at anywhere close to the 8,760 possible hours over a given
year that is generally assumed in the PTE calculation. These categories
may include: Furnaces, which likely only operate during the winter
season and parts of spring and fall; water heaters, which only combust
fuel at periodic intervals necessary to maintain water temperature; and
small stationary engines, which may operate only for limited and
defined periods of time for certain businesses.
The permitting authorities typically apply PTE limits as a source-
specific limit that is crafted in a facility's minor source permit and
tailored to the source's individual circumstances.
However, creating PTE limits for very large numbers of GHG-emitting
sources nationwide would require a more efficient approach than
creating them through individual minor source permits, as permitting
authorities have done to date. Otherwise, the sheer volume of permits
and the process involved for each permit would themselves create
administrative burdens that would be self-defeating. This could
particularly be the case for the title V program, for which many
sources may seek PTE limits as soon as the program becomes effective
for GHG emitters, and as a result, permitting authorities would need to
deal with a large number of sources at the same time.
In lieu of individual minor source permitting, we intend to
evaluate and to consider adopting, or encouraging State permitting
authorities to adopt, rules for source categories that we expect to
include large numbers of sources whose actual GHG emissions are well
below major source thresholds but which, absent such rules, have PTE
above those thresholds.
There are several approaches through which EPA could take this
action or encourage States to undertake similar actions. For certain
source categories, it may be possible to define the source so that its
PTE more closely tracks its actual emissions. To return to one of the
examples provided earlier, it may be possible to define furnaces (which
have the potential to operate year-round) to include the thermostats to
which they are attached, which constrain them from operating in warmer
weather. In this manner, the PTE of the furnace-thermostat source would
take into account the operational constraints, so that PTE would more
closely approximate actual emissions. This type of rule would not
constitute any legal constraint within which the source must comply;
rather, it would define the source as including specified pieces of
equipment that, in turn, incorporate operational constraints.
For other source categories, it is conceivable that the only way to
limit PTE would be to promulgate regulations that limit a source's
operation. These regulations are often referred to as ``prohibitory
rules.'' For example, the permitting agency could promulgate a
regulation that would preclude certain sources from operating for more
than a certain number of hours per year, while also providing a
streamlined method to allow a source to operate for longer hours upon
request to the permitting agency.
We have some experience with developing and issuing guidance on PTE
calculation methodologies through 1990s guidance for States wishing to
create PTE limits through prohibitory rules or other mechanisms for
several categories that were subject to seasonal operational shutdowns
or that did not operate at maximum capacity for each hour of each day,
so that actual emissions were well below their unadjusted PTE. See the
memorandum entitled ``Potential to Emit (PTE) Guidance for Specific
Source Categories,'' from John S. Seitz, Director, OAQPS, OAR, EPA, to
EPA Regions, April 13, 1998, found at EPA-HQ-OAR-2009-0517. These
categories included grain elevators, industrial boilers, gas stations,
emergency generators, printing operations, and cotton gins. The
guidance document provided assumptions and calculations that States
could use to develop prohibitory rules or other mechanisms to easily
limit the PTE of sources in these categories.
We envision a similar approach to establish PTE calculation methods
for various categories of sources that emit GHGs. The following steps
would need to occur for full development and implementation of such a
program:
Step 1: EPA identifies source categories that are generally
conducive to this approach, considering the amount of their GHG
emissions, complexity of operations, and emissions unit
characteristics.
Step 2: EPA collects data from the industry and individual sources
on typical operations, including emissions unit and process parameters.
Step 3: Acting through guidance or regulatory changes to the
Federal PSD regulations, EPA develops PTE calculation methodologies and
implementation procedures for the appropriate source categories.
Step 4: EPA solicits comment from permitting authorities and
affected sources on PTE calculation methodologies and implementation
procedures.
Step 5: EPA issues the final regulations or guidance.
Step 6: Permitting authorities adopt revisions that incorporate
EPA's regulations or guidance.
Step 7: Sources comply with any applicable legal limits.
Based on our efforts in the 1990's, we believe that it would take
EPA approximately 1 year to issue guidance for a given source category.
We believe many States would be able to immediately apply this
guidance. Some States may need to adopt the guidance in their SIP,
which EPA must then approve, a process that could take approximately 3
years. Finally, for those rules that would not be self-implementing,
sources would need time to meet the requirements of the rule. We ask
for specific comment on stakeholders' experience with limiting PTE by
rule rather than through individual permits, considerations in phasing
in this approach to GHG sources, and identification of categories that
might benefit from the use of rules limiting PTE.
2. Presumptive BACT
CAA section 165(a)(4) requires that sources subject to PSD
implement BACT for each pollutant subject to regulation under the Act,
and CAA section 169(3) requires that BACT emissions limits be
determined ``on a case-by-case basis'' that reflects the use of state-
of-the-art demonstrated control technology at the time of the permit
action. Thus, BACT is required to be source-specific, changes over
time, and requires continual updating. The permitting authority's
decision as to what control requirements constitute BACT affords
flexibility to consider a range of case-specific factors, such as
available control options and collateral cost, energy, and
environmental impacts.
[[Page 55322]]
However, full consideration of those factors requires significant data
and analysis in order for permitting authorities to arrive at a case-
by-case permitting decision that is appropriate for each individual
source when it constructs or modifies. For all these reasons,
determining BACT for a particular source can often be a complicated,
resource-intensive, time-consuming, and sometimes contentious process.
If the number of required PSD permitting decisions increases
significantly, these challenges will be magnified, and BACT
determinations will be a major factor contributing to uncertainty and
delay for sources seeking PSD permits. Furthermore, the increase in
workload of BACT determinations will require large investments of
resources by permitting authorities, sources, EPA, and the public
interested in commenting on these decisions.
In order to streamline the BACT process for the many new small
sources that will be brought into the PSD program based on their GHG
emissions, EPA will investigate ways to move from a system under which
permitting authorities set BACT limits on an individual, case-by-case
basis to a system under which they make BACT determinations for common
types of equipment and sources, and apply those determinations to
individual permits with little to no additional revision or analysis.
The EPA has previously introduced this concept, known as ``presumptive
BACT'', to streamline permitting for desulfurization projects at
refineries as well as in other instances,\23\ and some State permitting
authorities have adopted similar approaches.\24\ Based on our
understanding of the types of sources that will become subject to PSD
if GHG emissions are regulated at the statutory 100/250-tpy threshold,
we believe the presumptive BACT process could offer significant
streamlining benefits. These benefits arise because many of the sources
that would become subject to BACT will likely have very similar
emissions producing equipment, and there will be little variation
across sources with respect to the cost, energy, and environmental
considerations in the BACT decision.
---------------------------------------------------------------------------
\23\ See Memorandum, ``BACT and LAER for Emissions of Nitrogen
Oxides and Volatile Organic Compounds at Tier 2/Gasoline Sulfur
Refinery Projects,'' from John S. Seitz, Director, Office of Air
Quality Planning and Standards, to Regional Air Division Directors
(January 19, 2001).
\24\ For example, Wyoming has a minor source permitting program
that includes a BACT analysis, and they use a presumptive BACT
process for issuing minor source permits to a particular source
category--oil and gas production facilities. See Permitting Guidance
for Oil and Gas Production Facilities, Wyoming Dept. of
Environmental Quality, Air Quality Division (August 2007 revision).
---------------------------------------------------------------------------
The central component of a presumptive BACT approach would be the
recurring technical determination, subject to notice and comment, of
the presumptive BACT levels for various categories. Because of the
limited data currently available about the number and types of sources
that would become subject to the BACT requirement for GHGs, we cannot
at this time predict how many or which categories might benefit from
such an approach. We recognize that considerable work will be needed to
determine what options exist for controlling GHG emissions from these
categories of sources and the various types of emitting equipment they
use.
As noted above, the CAA requirement for BACT, found in sections
165(a)(4) and 169(3), mandate that BACT determinations be made for each
pollutant on a ``case-by-case basis.'' Accordingly, we need to explore
whether we can develop a process that benefits from the efficiencies
that presumptive BACT would provide while also allowing for
individualization of permits. A possible approach would be to develop,
through notice-and-comment rulemaking, a presumptive BACT level for
sources in a particular source category, but require that permitting
authorities allow public comment on individual permits as to whether
there are significant case-specific energy, economic, and/or
environmental impacts that would require adjustment of the presumed
limit for that particular source. This phase in approach could
streamline the BACT determination process to some extent, although the
prospect that presumptive BACT determinations would, as a result of
public comment, still have to be reviewed for numerous individual
sources could well negate those streamlining benefits.
Accordingly, we believe that we also need to investigate a system
under which presumptive BACT levels for a source category are developed
through notice-and-comment rulemaking but applied to individual sources
in that category without requiring permitting authorities to
individualize the BACT determination or to allow for public comment on
how presumptive BACT levels would apply to an individual source. The
D.C. Circuit, in the Alabama Power case discussed above, stated that
courts ``frequently uphold streamlined agency [regulatory] approaches
or procedures where the conventional course, typically case-by-case
determinations, would, as a practical matter, prevent the agency from
carrying out the mission assigned to it by Congress.'' 636 F.2d at 358.
The Court recognized that such streamlining measures may be needed when
time or personnel constraints or other practical considerations ``would
make it impossible for the agency to carry out its mandate.'' See id.
at 359. Given the significant increase in new sources that would likely
be brought into the PSD program once GHGs are regulated, maintaining
individual case-by-case BACT determinations may well be impractical and
may well warrant a presumptive BACT approach that does not authorize
individualized, source-specific determinations. This approach could
well be an important tool to allow EPA, State and local permitting
authorities to carry out the PSD program in as timely and efficient
manner as necessary to promote (rather than hinder) control of GHG
emissions from the many new, small source categories that would be
required to have PSD permits based on their GHG emissions. This
approach would preserve opportunities for public participation by
taking comment during the determination of presumptive BACT levels for
a source category. Although this type of presumptive BACT approach--one
that does not permit individualized, source-specific determinations--
would depart from a literal application of the statutory requirements
for BACT, it may nevertheless remain closer to the congressional intent
for the PSD program than maintaining the applicability threshold at a
level higher than the statutory level. If this is the case, then EPA
could be required to establish a presumptive BACT approach and lower
the applicability thresholds from the first phase level proposed in
this action.
Several other factors should be taken into account when considering
a change from case-by-case BACT determinations to a presumptive BACT
process for some specific source categories within the PSD program. As
a general matter, we will need to consider how such presumptive BACT
limits should be established and used, and what provisions in the CAA
would set requirements or limits on their establishment and use. In
particular, EPA recognizes the CAA section 169(3) requirement to set
BACT limits after taking into account site-specific energy, economic,
and environmental impacts (otherwise known as collateral impacts).
In addition, while case-by-case BACT determinations allow for the
continual evolution of BACT requirements over time (as controls applied
in prior
[[Page 55323]]
permits are considered in each subsequent case-by-case BACT
determination), EPA recognizes that application of presumptive BACT to
a category of sources over many permitting decisions may diminish the
technology forcing effects of PSD. EPA is interested in options that
would help maintain advances in control technologies, such as a
requirement to update and/or strengthen BACT at set intervals (such as
after 3 years).
EPA seeks comment on all aspects of the use of presumptive BACT
limits within the PSD program, including EPA's authority to do so,
whether there is need for and value to such an approach, and
suggestions for how such limits could be established, updated, and used
consistently within the requirements of the CAA, or by departing as
little as possible from those requirements. We also ask for comment on
whether there are issues at traditional PSD major sources that arise
for GHGs and that would not be addressed by a presumptive BACT
approach. If so, we ask for comment on additional options for
streamlining the BACT requirement to address these issues.
3. General Permits and Permits-by-Rule
A general permit is a permit that the permitting authority drafts
one time, and then applies essentially identically (except for some
source-specific identifying information) to each source of the
appropriate type that requests coverage under the general permit.
Congress expressly codified the concept of general permits when it
enacted the title V program and States have been using general permits
and similar processes for years in their own permit programs,
particularly for minor source NSR and operating permits. Due to the
case-by-case nature of PSD for ``traditional'' major sources and the
differences among individual PSD sources, there has not been much
interest or activity in general permitting for the PSD program.
However, we believe this approach merits strong consideration for both
PSD and title V programs due to the large number and similar
characteristics of many of the sources that EPA expects will become
newly subject to these permitting programs because of their GHG
emissions.
A general permit provides a streamlined application and permitting
process for sources that are similar in terms of operations, emissions
units, and applicable requirements. By issuing a general permit, a
permitting authority indicates that it approves the activities
authorized by the general permit, provided that the owner or operator
of the source registers with the permitting authority and meets the
requirements of the general permit.
Permit-by-rule provisions may be very similar to general permit
provisions, but they typically authorize a source owner to operate in
accordance with certain requirements provided that the source owner
registers with the permitting authority or certifies that they are
complying with all applicable requirements. Thus, a source subject to
the permit-by-rule would not need to wait for permitting authority
approval, as is the case with the general permit, prior to operating
under a permit-by-rule.
General permits are attractive in their ability to dramatically
reduce permitting timeframes for affected source types. At the same
time, general permits are highly conducive to automation and the
development of web-based applications. For example, New Jersey's
Department of Environmental Quality has fully automated its air general
permitting process, allowing source owners to go online, apply for a
general permit, build the permit themselves, issue it to themselves by
printing it out, and pay for it by credit card. This type of one-stop
processing has the potential to dramatically streamline the air
permitting process for source types covered by general permits, and the
resulting electronic records create spillover benefits for compliance
tracking, inspection management, and pollution prevention outreach.
a. General Permits for the PSD Program
EPA has limited experience in developing general permits and
permits-by-rule under the PSD program due to the predominance of the
case-by-case BACT decision process described in section VII.A.2 of this
preamble. In considering the use of general permits within the PSD
program, EPA is considering how such general permits should be
established and used, and what provisions in the CAA might limit their
establishment and use. One option is to model PSD general permits on
the general permits used in title V, as provided in 40 CFR 70.6(d).
However, an important consideration in establishing PSD general permits
is the requirement in CAA Sec. 165(a)(2) that permits be issued after
``a public hearing has been held with opportunity for interested
persons including representatives of the Administrator to appear and
submit written or oral presentations.'' One option for addressing this
public participation requirement at least to some extent is the
approach followed for title V general permits in 40 CFR 70.6(d), which
provides that permitting authorities may establish general permits
after following notice-and-comment procedures required under 40 CFR
70.7(h) and then grant a source's request to operate under a general
permit without repeating the public participation procedures. Other
considerations for establishing general permits under the PSD program
include the requirement to determine BACT on a case-by-case basis (as
discussed in an earlier section of this preamble), and the other
procedural requirements referred to in section VII.A.3 of this preamble
concerning the Class I consultation and the analysis of air quality and
other potential impacts under CAA section 165(e).
Because permitting authorities have had minimal experience in
developing general permits and permits-by-rule for PSD, sufficient time
would be needed to develop them as useful tools to reduce the
administrative burden associated with the application of the PSD
program to major GHG sources. Sufficient time would be needed for the
following steps: (1) EPA must determine best candidate sources for
general permits and permits-by-rule; (2) EPA must determine similar
types of processes and source types and sizes to combine; (3) EPA must
prioritize the development and use of general permits and permits-by-
rule; (4) EPA must issue guidance or rulemaking (as needed) for each
grouping of similar sources; (5) States must adopt the guidance or
rulemaking in their SIPs, as needed; and (6) sources must implement the
requirements. We estimate that EPA would require more than 3 years to
develop and deploy general permits and permits-by-rule would require
more than 3 years to develop and deploy for a candidate group of
sources, and that additional time would be needed for the States and
sources to take the indicated steps.
EPA seeks comment on the use of general permits within the PSD
program, including both EPA's authority to do so and suggestions for
how general permits would be established and used consistent with the
requirements of the CAA and identification of source categories that
could benefit from such an approach.
b. General Permits for the Title V Program
In contrast to the PSD program, in the title V program, general
permits are specifically authorized under CAA section 504(d), which
provides:
The permitting authority may, after notice and opportunity for
public hearing, issue a general permit covering numerous similar
sources. Any general
[[Page 55324]]
permit shall comply with all requirements applicable for permits under
this subchapter. No source covered by a general permit shall thereby be
relieved from the obligation to file an application under section 503
of this Act.
EPA regulations describe general permits in 40 CFR Sec. 70.6(d).
These provisions specifically authorize the use of general permits
covering numerous similar sources under the title V program. The
general permit must also follow the public participation requirements
of 40 CFR 70.7(h). The information development and review conducted as
part of streamlining for an individual source can be used by the
permitting authority to generate a general permit for similar sources
or portions of sources. If a general permit were used, EPA and public
review beyond that needed to issue the general permit would not be
necessary when sources subsequently applied for the streamlined permit
conditions established under the general permit. Even where a general
permit is not issued, the availability of information obtained from the
streamlining of one source may be useful as a model for future
streamlining actions involving other similar sources. EPA notes that
the part 71 regulations addressing title V permits issued by EPA (and
delegated authorities) contain parallel provisions regarding general
permits. See 40 CFR 71.6(d).
We believe general permits may have more near-term applications for
the title V program than for the PSD program because of past experience
of permitting authorities, however limited, in using this permit
streamlining technique for title V. Certain States have already used
general permits for a relatively narrow population of certain minor,
mainly area-type sources with a simple set of applicable requirements
that were relatively easy for both permitting authorities and sources
to implement. These general permits allowed the sources a more focused
``roadmap'' to meeting their regulatory requirements with far less
burden associated with applying for the permits and administering them
in general. In response to the ANPR, some State commenters noted that
they have a successful history of using general permits and believe the
use of general permits could be an effective and reasonable approach to
reduce regulatory costs and administrative burdens.
We agree that there are similarities between the way general
permits have been used in the past, particularly under title V, and the
challenges permitting authorities would face for permitting GHG
emissions for sources that would not already have, or necessarily need,
a more comprehensive title V permit. However, most permitting
authorities lack experience with general permits and with GHG sources
in general. As a result, we believe that the process of developing
general permits for title V purposes would parallel in certain respects
the process of developing them for PSD purposes. Specifically, title V
permitting authorities would need sufficient time to (1) determine
candidate sources for general permits, (2) determine similar permit
elements for those sources and develop adequate templates and formats
for the general permits for those sources, (3) conduct formal EPA and
public review of the general permit, and (4) develop an adequate
implementation plan for sources to apply for such permits and for
permit review staff to process such permits. After this, sources would
need additional time to comply with the general permits. We believe
this process would take at least 2 to 3 years for a partial set of
general permits to be fully developed and ready for deployment.
4. Electronic Permitting
Implementation of electronic permitting (e-permitting) systems is
growing across the U.S., as more and more States implement new or
upgraded systems. We believe these systems, possibly in conjunction
with general permitting procedures, could assist in addressing some of
the administrative burden created by adding GHG emissions sources to
the PSD and title V programs.
Most States are currently using agency Web sites to deliver a range
of air permitting program services, from enabling electronic submittal
of permit applications to providing the public web access to permits
and related documents. Permitting authorities find value in e-
permitting systems because these systems can lead to improved customer
service, decreased data entry errors, shortened permit review
timeframes, and improved systems for managing permitting processes. In
short, e-permitting systems can make better permits more quickly.
Common State e-permitting activities include:
Development of air permit application forms which can be
accessed, completed, and submitted online;
Development of specialized software or database
applications to review submitted permit applications and to support the
permit development process; and
Posting issued permits and draft permit documents to air
permitting Web sites.
New technology is expanding the opportunity for collaboration and
joint development around information system tools. To enable permitting
authorities to handle the administrative workload associated with the
application of the PSD and title V programs to GHG sources, EPA could
assess and identify best practices for e-permitting system
implementation and support States in implementing effective and
efficient systems using targeted e-permitting tools and resources. For
example, EPA could work with States to develop effective GHG permitting
strategies in the following areas:
Permit application submittal which would involve processes
for facilities to identify permits needed, determine the scope of
information to include in permit applications, access and complete
application forms, and submit those forms and supporting data to State
and local permitting authorities.
Application review and draft permit generation which would
involve processes for State and local permitting authorities to conduct
administrative and technical permit application reviews, develop permit
conditions, and sometimes create draft permit documents. This category
could also include a broad range of information technology tools and
resources that could support permit writers in preparing better permits
more quickly.
Draft permit review and final permit issuance which would
involve processes for State and local permitting authorities to manage
completion of external reviews (including public and EPA review
periods) and any related updates to the draft permit document, issuance
of the final permit, and collection of permit fees.
Post-issuance activities which would incorporate all
activities related to permits that are managed by State and local
permitting authorities after permits are issued (including public
access to permits and related documents, permit appeals, permit
modifications, permit renewals, and inspections and compliance
monitoring).
Workflow tracking and management which would incorporate
all of the management procedures and tools that State and local
permitting authorities use to track the permit development process,
including internal permit authority timeline tracking and public access
to workflow information.
[[Page 55325]]
5. ``Lean'' Techniques for Permit Process Improvement
In the business world, ``lean'' techniques refers to a collection
of process improvement principles, methods, and tools designed to help
organizations identify and eliminate non-value-added activity
(``waste''), in order to meet customer needs better, more quickly, and
more efficiently. Lean techniques have been adopted across numerous
business sectors and been adapted to address both production and
administrative processes. Lean process improvements could help
permitting authorities to address administrative burdens that are
created if numerous GHG sources are added to their air permitting
programs.
In the context of air permitting, Lean improvement events typically
focus on eliminating the following types of administrative process
waste: Backlogs in permitting; errors in documents; unnecessary rework
on documents; and delays associated with transmission of documents
between the various parties that develop and approve them. Since 2003,
State environmental agencies have increasingly used Lean manufacturing
principles and methods to drive rapid, continuous improvement in air
permitting and other agency processes.
B. Implementation of Streamlining Techniques and Overall Approach To
Administering PSD and Title V Programs
As noted above, these potential streamlining options and tools will
require time to develop, issue, and reach full deployment. Each
technique would generally take from 3 to 4 years to fully develop and
implement. Therefore, if we did not phase in the applicability
thresholds for sources of GHG emissions as soon as PSD and title V
requirements are triggered for them, there would be a significant time
period when numerous GHG sources exceeding the statutory permitting
thresholds for PSD and title V would need to obtain permits, and
permitting agencies would be faced with overwhelming administrative
burdens. Also, at this point in time we do not have enough information
to predict the full potential applications and impact of these
streamlining techniques for permitting GHG sources. Therefore, it is
impossible to predict a specific time in the future when and if such
streamlining techniques would reduce the administrative burden of
permitting authorities sufficiently for them to administer PSD and
title V programs for GHGs at the current permitting thresholds.
Instead, we propose to commit to investigating and developing these
techniques as vigorously and as soon as possible as part of an overall
GHG tailoring strategy that involves phasing in the GHG major source
permitting thresholds as soon as PSD and title V requirements are
triggered for GHG emitters, but that further involves reassessing the
situation, completing a study within 5 years, and then taking up to 1
additional year to finalize regulations adopting the lowest threshold
that we conclude is administrable based on the study.
Even so, we have enough information now about some streamlining
techniques, such as presumptive BACT in support of PSD permitting and
general permits in support of title V permitting, to recognize that
those techniques are quite likely to be beneficial to both permitting
agencies and affected sources. We believe that within the framework we
propose in this action there will be sufficient time to deploy the
streamlining techniques and to evaluate their effectiveness in
addressing administrative burden.
Therefore, in conjunction with our proposed action to tailor the
GHG permitting thresholds, we are committing to a concurrent effort to
investigate, evaluate, and support the implementation of permit
streamlining techniques to address GHG sources. We believe that while
the proposed temporary thresholds will allow the permitting authorities
to implement their programs for PSD and title V, it is also necessary
for us to pursue applicable streamlining techniques that may help our
assessment of the temporary thresholds as part of the threshold
evaluation study. We believe that at the end of the threshold
evaluation period we will have a better understanding and a sufficient
record of the effectiveness of different permit streamlining techniques
and how these techniques may influence the need to consider alternative
thresholds.
We request comment on which types of streamlining techniques, and
for what source categories, would be of most value to permitting
authorities and affected sources. We also request comment on the
anticipated impact such techniques would have on permitting
authorities' administrative capabilities to address GHG permitting and
how such impact would affect the need for the temporary thresholds
proposed under this action. We also request comment on the time periods
needed to develop and implement any such streamlining techniques and on
how such time frames can expeditiously meet CAA requirements in light
of the administrative burden that would remain.
C. Strategies for Obtaining GHG Reductions From Sources Under the
Proposed GHG Permit Thresholds
In addition to pursuing permit streamlining techniques that may
ultimately have application to smaller GHG source categories (e.g.,
those in the commercial and residential sectors), we also recognize
that there are both current and future EPA programs that could be used
to mitigate GHG emissions from these smaller sources. It may well be
the case that, for the smaller sources, these approaches, which are
summarized in this section, will result in more efficient and cost-
effective regulation than would case-by-case permitting. We therefore
intend to fully explore the use of all available tools for addressing
these sources at the same time as we explore streamlining the
permitting programs.
While EPA is proposing that during the first phase, GHG sources
less than 25,000 tpy CO2e will not be subject to PSD and
title V requirements for purposes of applicability, there are feasible,
cost-effective opportunities for reductions from these sources through
means other than PSD and title V during the first phase. The tailoring
proposal does not restrict our ability to explore these opportunities
during this first phase. EPA has strong interest in pursuing such
opportunities and therefore requests your comments on the
practicability of near-term regulatory and nonregulatory programs to
address smaller sources.
The near-term opportunities for GHG emissions reductions in
smaller-scale stationary sources include increased energy efficiency,
process efficiency improvements, recovery and beneficial use of process
gases, and certain raw material and product changes that could reduce
inputs of carbon or other GHG-generating materials. The use of
alternative fuels and energy are also promising methods for achieving
GHG reductions.
One key challenge in addressing sources emitting less than 25,000
tpy CO2e is their diversity. The source types may range from
landfills to small stationary fuel combustion devices to waste water
treatment plants and electronics manufacturing. In addition to
including a range of processes, these source categories may include
large (>25,000 tpy CO2e) and small sources. EPA is
soliciting public comment on a fair and systematic way to address the
diverse number of categories where individual sources are comparatively
small, but the source category could be addressed through some cost
effective means.
[[Page 55326]]
Controls on sources at this scale would likely involve decisions on
how proposed installations of equipment and processes for a specific
source category can be redesigned to make those sources more energy
efficient, for example, while taking cost considerations into account.
However, these types of approaches have yet to be adopted widely,
because of market barriers, insufficient financial and legal
incentives, or other barriers. Below, EPA provides some examples of
approaches that could be taken and existing programs that could provide
useful platforms to address smaller sources.
We request comment on the types of strategies that may be
appropriate for these sources, considerations--such as cost and
feasibility--with respect to implementing programs for smaller sources,
approaches to incentivize these types of programs, and ways to measure
the effectiveness of such initiatives. We also request comment on
whether these initiatives have the potential to be developed in such a
way as to meet the essential PSD and title V program requirements for
sources, even if the initiatives do not necessarily meet the letter of
those requirements (such as the case-by-case determinations required
under the PSD program), based on administrative imperatives.
For instance, EPA could design a hybrid approach where sources on
the larger end of the below-25,000-tpy CO2e range could be
required to analyze pathways to reduce GHG emissions by a certain
percentage, but EPA or the States could use flexible criteria in
requiring reductions from those sources, including the timeframe for
achieving such reductions. These requirements could be supplemented by
an incentive program, through which a State could use loan, grant, or
emissions credit incentives to help such sources lower their GHG
emissions profile, especially when the source is performing a
modification. Any approach would have to be systematic, in that the
criteria used would have to be responsive to the source volume of
emissions, the reductions that might be achieved, cost-effectiveness,
permanence and enforceability.
A further alternative would be the use of section 111(d) of the CAA
to work with smaller sources to reduce emissions. In contrast to other
provisions in the Act which require regulation of all sources above
specific size thresholds, section 111 gives EPA significant discretion
to identify the facilities within a source category that should be
regulated. To define the affected facilities, EPA can use size
thresholds for regulation and create subcategories based on source
type, class or size. Emissions limits also may be established either
for equipment within a facility or for an entire facility. EPA also has
significant discretion to determine the appropriate level for the
standards.
In addition to exploring regulatory options, EPA will continue to
consider existing nonregulatory programs to achieve cost-effective
emissions reductions. Some of the EPA's current programs, discussed
below, are aggressively working to cost-effectively mitigate GHG
emissions through energy efficiency in industry and consumer products
and other voluntary programs that address several key CH4
and other high-GWP sources. The source categories discussed below are
not exhaustive, and are discussed as illustrative examples. It is also
important to note that particular sources in these categories could
fall above or below a threshold value of 25,000 tpy CO2e.
Energy efficiency is one of the lowest cost means for addressing
climate change. Since 1992, EPA, through the ENERGY STAR program, has
achieved GHG reductions by helping U.S. businesses adopt cost-
effective, energy-efficient technologies and practices. The program
combines several elements, including: ENERGY STAR branding of
commercial products with superior energy performance and promoting
strategic energy management practices across the commercial and
industrial sectors. We also work with States to leverage wider use of
such ENERGY STAR products as commercial roofing materials, furnaces,
and boilers in commercial settings. States can promote the purchasing
of ENERGY STAR qualified products in residential multi-family housing
and commercial buildings such as offices, hospitals, hotels, schools,
and warehouses. These building types comprise the vast majority of
sources that would have emissions below the proposed 25,000-tpy
CO2e major source threshold.
Also for these building types, States can take advantage of EPA
tools to encourage, track and reward improvements in building
efficiency. Already, States are leveraging such tools as Portfolio
Manager to make disclosure of building efficiency part of sale/lease
transactions. Many States also use ENERGY STAR to incentivize adoption
of energy-efficient equipment and buildings through regulated utilities
and other energy efficiency program sponsors. Finally, EPA provides
resources to help--or to enable States to help--manufacturers improve
energy efficiency through a transferable platform that States can adopt
which includes sector-targeted energy efficiency guidance, energy
program development tools, and a national rating system that scores the
energy performance of plants and enables documentation of energy
improvement for those interested in demonstrating change in
performance. For additional information on these programs, visit http://www.energystar.gov.
Methane and other high-GWP gases, including PFCs, HFCs, and
SF6, are potent GHGs that contribute to climate change. In
an effort to reduce emissions of these gases, EPA is working
cooperatively with a variety of companies and organizations in the
energy, waste management, agriculture, and industrial sectors to
implement voluntary programs that encourage cost-effective emissions
reductions. These programs offer a range of technical and policy
information products and exchanges and track emissions reductions in
the following key sectors: landfills, oil and gas systems, animal
waste, coal mines, industrial processes including aluminum production,
semiconductor manufacturing, electric power transmission, magnesium
production and processing, and the production of HCFC-22, and
wastewater from domestic or industrial sources. Experience and lessons
learned through these programs can be used by States and EPA for
regulatory and nonregulatory initiatives. For additional information on
the CH4 and high-GWP programs, visit http://www.epa.gov/methane/voluntary.html and http://www.epa.gov/highgwp/voluntary.html.
For more information on opportunities for GHG reductions at wastewater
treatment facilities, visit http://www.epa.gov/chp/documents/wwtf_opportunities.pdf.
VIII. Description and Rationale of Proposed Action
A. Proposed Permitting Thresholds for GHGs
Based on the legal rationale of ``absurd results'' and
``administrative necessity'' described in section VI of this preamble,
EPA is proposing with this action to establish the first phase of the
thresholds for determining applicability under both the PSD and title V
permitting programs and to set a significance level for GHGs under the
PSD program. For both PSD and title V purposes, we are proposing to set
the applicability threshold at 25,000 tpy CO2e. In addition,
for the PSD significance level, we are proposing a range from 10,000 to
25,000 tpy CO2e. Upon finalization of this rule, and based
[[Page 55327]]
on comments received and the supporting record, we will establish a
singular value for the GHG significance level.
EPA is also proposing in this action to commit to evaluating the
impact, effectiveness, and need for these GHG permitting thresholds as
well as other aspects of the administrative burden for permitting
authorities in a study to be completed within 5 years from the
promulgation date of the final version of this rulemaking. Based on the
results of that study, EPA would propose and promulgate a rulemaking
within a year later that would establish the second phase of the
tailoring program. This rulemaking would reaffirm the first-phase GHG
permitting thresholds or revise those thresholds, promulgate other
streamlining techniques, and/or take action consistent with the goal of
expeditiously meeting CAA requirements in light of the administrative
burden that remains at that time.
This section of the preamble defines the GHG metric used for
purposes of determining whether the proposed thresholds are exceeded,
describes the policy and technical rationale for selecting the proposed
applicability thresholds for PSD and title V, and discusses the
proposed 5-year threshold evaluation study.
While the rest of this section discusses the details of our
proposed approach, we note at the outset that there may be other ways
to structure the first phase of permit program applicability for GHGs
than the one we describe as our preferred approach. For example, we
could address the administrative burden by defining the sources in the
first phase subject to permitting for GHGs to include only sources that
are or become subject to title V or PSD permitting obligations under
the existing 100/250 tpy statutory thresholds on the basis of their
emissions of a non-GHG pollutant. Under this approach, for example, a
new source that triggered PSD for a non-GHG regulated NSR pollutant and
that also emits GHGs, or an existing source going through a
modification that triggered PSD for a non-GHG regulated NSR pollutant
and which also increased its GHG emissions would have to do a BACT
analysis for GHGs. This BACT process would be expected to identify
control options which are technically feasible and cost effective for a
particular source based on the tons emitted, thereby ensuring that the
first phase of permitting would apply to the largest sources of GHG
that are currently subject to CAA regulation based on emissions of non-
GHG pollutants. Sources that do not trigger PSD or title V for a non-
GHG pollutant would not be subject to these programs solely on the
basis of their GHG emissions. Under such an approach, we may still need
to establish a significance level for GHG emissions at sources that are
subject to PSD due to their non-GHG emissions, but we could consider
setting this based on the 10,000 ton CO2 eq significance
level proposed elsewhere in this package. We solicit comment on this
approach, and on other potential variations on our proposal that
commenters believe could address the administrative concerns in more
effective ways.
B. What is the definition of the GHG pollutant for the proposed
permitting thresholds?
1. Background on GHG Metrics
The selection of a GHG metric is an important consideration in
developing the GHG permitting threshold options because it sets the
basis for evaluating whether a particular source exceeds a given
threshold. As noted in section IV.A of this preamble, one commonly
utilized metric is to estimate and report emissions of GHGs as the
collective sum of emissions of the six primary GHGs, with applicable
GWPs applied to the non-CO2 gases. When GWPs are applied to
the mass emissions of one of the primary GHGs, the resulting weight is
referred to as CO2e (see section IV.A of this preamble for a
description of CO2e). Another possible metric would consist
of individual mass-based emissions for each GHG, without their GWP
values applied. The choice of the GHG metric can have a significant
impact on design and implementation of the GHG permitting threshold.
For example, if a source only evaluated its CO2
emissions against a permitting threshold, it may fall below the
threshold, but if it evaluated the sum of all its primary GHG emissions
on a CO2e basis, it may fall above the threshold. Although
there may be a variety of considerations for including one GHG metric
over another, the choice of a GHG metric, whether it be the sum of the
CO2e emissions or individual GHGs, for both PSD and title V
programs, must include any of the individual GHGs that may be subject
to regulatory action under the CAA, as discussed in section IV.D of
this preamble.
One of the reasons EPA is undertaking this rulemaking is because it
intends to propose and finalize a separate rule that regulates GHG
emissions from light-duty motor vehicles and that would trigger PSD and
title V permitting requirements for stationary GHG emissions sources.
The light-duty motor vehicle rule will identify a GHG pollutant or
pollutants subject to regulation. However, at the time of this proposal
there is uncertainty as to exactly what GHG metric will ultimately be
finalized in the light-duty motor vehicle rule. Also, as discussed in
the ANPR, there may be other future regulatory actions or decisions by
EPA that would determine what form of GHGs would be subject to
regulation under the CAA, such as new source performance standards for
certain source categories under CAA section 111. This uncertainty over
the form of the GHG metric in future regulatory actions is an important
factor in our selection of the GHG metric for the permitting threshold.
In order to better inform our consideration of different GHG
metrics for the proposed GHG permitting thresholds, we also reviewed
the GHG metrics used in two recent EPA proposals: the endangerment
finding and the GHG mandatory reporting rule.
In the proposed endangerment finding for GHGs, the Administrator
proposed to define the air pollutant as the ``[c]ollective class of the
six greenhouse gases,'' and referred to the widespread use of
CO2e as a means to evaluate the six primary GHGs as a group
(74 FR 18886, April 24, 2009). The Administrator also identified this
collective approach to defining GHGs, for the contribution test, as
most consistent with the treatment of GHGs by those studying climate
change science and policy, where it has become common practice to
evaluate GHGs on collective CO2e basis. However, the
Administrator also recognized in the proposed finding that each GHG
could be considered a separate air pollutant and that defining the air
pollutant as the group of six GHGs does not preclude setting standards
that control emissions of individual GHGs, as constituents of the
group.
Under EPA's GHG Mandatory Reporting Rule proposal, the emissions-
based applicability thresholds for reporting are based on total
CO2e calculated from the sum of a facility's emissions of
the six primary GHGs plus other fluorinated GHGs, applying GWP values
to non-CO2 gases (74 FR 16448, April 10, 2009). However,
annual reporting is required for both total CO2e and
individual GHGs on a mass basis, with no GWPs applied for non-
CO2 gases.
We also note that both domestic regional cap-and-trade programs
(e.g., the Regional Greenhouse Gas Initiative) and international
trading programs (e.g.,
[[Page 55328]]
the European Union Emission Trading Scheme) make use of the
CO2e metric for purposes of offsets accounting and emissions
trading that involves different GHGs. Under the United Nations
Framework Convention on Climate Change (UNFCCC), the U.S. and other
countries also report their annual emissions of the six GHGs in terms
of CO2e units.
2. Rationale for GHG Metric Selection for Proposed Permitting
Thresholds
As discussed elsewhere, EPA interprets the PSD and title V
requirements to apply to each ``air pollutant'' that is ``subject to
regulation'' under other provisions of the CAA. It is important to
determine which GHGs to treat as the ``air pollutant'' that is subject
to PSD and title V requirements and how to measure those GHGs. Taken
together, this is termed the GHG metric. As noted above, in the
proposed endangerment and cause or contribute findings under section
202(a) of the CAA, EPA proposed to define the ``air pollutant'' for the
contribution analysis as the class of six GHGs CO2,
CH4, N2O, SF6, HFCs, and PFCs); but
EPA also took comment on the concept of defining each GHG as a separate
air pollutant. In connection with the light-duty vehicle rule under CAA
Sec. 202(a) that EPA is proposing at the same time as this action,
four of those six GHGs which are emitted by light-duty motor vehicles
are proposed to be subject to controls under the light-duty vehicle
rule (all but SF6 and PFCs). As EPA explains in the light-
duty vehicle rule and below, EPA has discretion under section 202(a) to
establish controls at the GHG-specific level regardless of whether the
final definition of ``air pollutant'' for the contribution analysis is
the class of six GHGs or each GHG individually. In light of the ongoing
relevant rulemakings, this proposal discusses several possible ways for
identifying the GHG metric for PSD and title V requirements. First, the
metric could address each GHG individually, or it could address them as
a single GHG group. Second, the metric could include (whether
individually or as a group) all six of the GHGs, or only those four
GHGs subject to controls in the light-duty vehicle rule. Third, the
metric could measure the GHGs (whether individually or as a group) on
the basis of their actual tonnage or their equivalent tonnage based on
global warming potential (GWP), which we refer to as CO2
equivalent, or CO2e.
We propose to identify the GHG metric as the group of six GHGs, on
a CO2e-basis. Using a CO2e basis, a source's
emissions for any of the six primary GHGs that are ``subject to
regulation'' under the Act, and therefore considered ``regulated NSR
pollutants,'' are summed on a CO2e basis using their GWP
values. The summed CO2e emissions would then be compared to
the applicable permitting threshold to determine whether the source is
subject to PSD and title V requirements. We solicit comment on whether
we should identify the GHG metric in a different way, such as one of
the options identified above.
a. Legal Rationale
Because PSD and title V apply to each ``air pollutant'' subject to
regulation, it is necessary both to examine the definition of ``air
pollutant'' and to determine which air pollutant or pollutants are
proposed to be subject to regulation under CAA Sec. 202(a).
PSD applies to a ``major emitting facility,'' under CAA Sec.
165(a), and that term is defined under CAA Sec. 169(1) as--
any of the following stationary sources of air pollutants which
emit, or have the potential to emit, one hundred tons per year or
more of any air pollutant from * * * stationary sources [in 28
listed categories]. * * * Such term also includes any other source
with the potential to emit two hundred and fifty tons per year or
more of any air pollutant.
(Emphasis added.) Similarly, Title V requirements apply to ``major
source[]s,'' under CAA Sec. 502(a), and that term is defined under CAA
Sec. 501(2)(B) and CAA Sec. 302(j) as--
any stationary facility or source of air pollutants which directly
emits, or has the potential to emit, one hundred tons per year or
more of any air pollutant * * *.
(Emphasis added.) The term ``air pollutant,'' which, as just noted, is
central to the applicability provisions of both PSD and title V, is
defined under CAA Sec. 302(g) as--
any air pollution agent or combination of such agents, including any
physical, chemical, biological, radioactive * * * substance or
matter which is emitted into or otherwise enters the ambient air.
As just noted, EPA treats sources emitting air pollutants as
subject to PSD and title V requirements only if the air pollutants are
``subject to regulation'' under other provisions of the CAA. EPA's
current interpretation of ``subject to regulation'' is found in the PSD
Interpretive Memorandum, which defines the term as meaning subject to
either a provision in the CAA or a regulation adopted by EPA under the
CAA that requires actual control of emissions of that pollutant, and to
exclude pollutants for which EPA regulations only require monitoring or
reporting. Accordingly, under the PSD Interpretive Memorandum, the air
pollutant that is subject to regulation is the air pollutant for which
actual controls are required under other provisions of the CAA.
We believe that PSD and title V requirements will be triggered for
GHGs if EPA completes the rulemaking that EPA is currently proposing
for light-duty vehicles and vehicle engines. That rule is based on CAA
Sec. 202(a). Paragraph (1) of Sec. 202(a) provides, in relevant part:
The Administrator shall by regulation prescribe (and from time
to time revise) in accordance with the provisions of this section,
standards applicable to the emission of any air pollutant from any
class or classes of new motor vehicles or new motor vehicle engines,
which in his judgment cause, or contribute to, air pollution which
may reasonably be anticipated to endanger public health or welfare.
(Emphasis added.) This provision, by its terms, requires, as a pre-
requisite for regulating an ``air pollutant'' from the described mobile
sources, that EPA must make what has come to be called an
``endangerment finding'' for that ``air pollutant;'' and further
requires that once EPA makes that endangerment finding, EPA must
proceed to ``set standards [for new motor vehicles] applicable to the
emission of [the] air pollutant'' for which the endangerment and
companion cause or contribute finding was made. EPA has already
proposed an endangerment finding for the air pollutant comprised of the
collective group of six GHGs: CO2, CH4,
N2O, SF6, HFCs, and PFCs, as well as a finding
that new motor vehicle emissions of the 6 GHGs, viewed as a single
group air pollutant, contribute to this endangerment. 74 FR 18886,
18904, 18907 (April 24, 2009).\25\ Four of these GHGs are emitted by
light-duty motor vehicles; as a result, concurrently with this rule,
EPA is proposing to set emissions standards for those four GHGs. As
noted in the light-duty vehicle rule and below, EPA can set standards
for the specific GHGs emitted by light-duty motor vehicles versus for
the single air pollutant that is comprised of the six GHG, and still
comply with the requirement in section 202(a) regardless of how EPA
finally defines ``air pollutant'' in the final endangerment and
contribution findings. EPA is proposing to regulate the GHGs emitted by
light-duty vehicles by establishing separate emission
[[Page 55329]]
standards that limit emissions of CO2, CH4, and
N2O. EPA would also allow credit towards the CO2
standard based on vehicle air conditioner controls that reduce
emissions of HFCs.
---------------------------------------------------------------------------
\25\ In the proposed endangerment finding, the Administrator
also stated that if each of the four GHGs emitted by new motor
vehicles were treated as separate air pollutants, she would find
that each of the four contributes individually to the air pollution
that endangers.
---------------------------------------------------------------------------
In light of how the proposed endangerment and contribution finding
identifies, and light-duty vehicle rule regulates, emissions of, the
``air pollutant'' under CAA Sec. 202(a), EPA's task in this proposal
is to identify the ``air pollutant'' for which PSD and title V will
become applicable under CAA Sec. Sec. 165(a)/169(1) and CAA Sec. Sec.
502(a)/501(2)/302(j). This ``air pollutant,'' for PSD and title V
purposes, is the ``air pollutant'' that is ``subject to regulation''
under CAA Sec. 202(a), according to EPA interpretation.
We are proposing that the relevant ``air pollutant'' for purposes
PSD and title V applicability is the single air pollutant that is
comprised of the group of six GHGs, as proposed in the Sec. 202(a)
endangerment and contribution findings. These six GHGs as a class
comprise the air pollutant that is the subject of the endangerment
finding and companion contribution finding and constitute the air
pollutant that is regulated by the light-duty vehicle rule through
measures that address the components of that air pollutant that are
emitted from the mobile sources. Thus, although the CAA Sec. 202(a)
proposal establishes controls only with respect to four GHGs, as a
legal matter the proposal covers the entire set of GHGs that as a class
are the single ``air pollutant'' in the proposed endangerment and
contribution findings.
We also solicit comment on whether only the four GHGs actually
controlled under the mobile source rule should be treated as the ``air
pollutant'' subject to PSD and title V applicability. In particular, we
solicit comment on whether such an approach would be consistent with
our treatment of other ``air pollutants'' that are comprised of
numerous individual substances (e.g., VOCs or PM), and how it interacts
with EPA's duty under section 202(a) to sets standards for emissions of
the ``air pollutant'' for which a contribution finding is made under
that section.
In addition, we further believe that the definition of ``air
pollutant'' for PSD and title V purposes provides for sufficient
flexibility that the form of the standard--that is, the metric--that
EPA adopts for PSD purposes may differ from the form that EPA adopts
for purposes of regulation under CAA Sec. 202(a). Section 202(a)
authorizes EPA to set ``standards applicable to the emission of [the]
air pollutant.'' This provides EPA significant discretion in
determining how to structure its new motor vehicle standards, as long
as they are ``applicable to emission'' of the air pollutant. How EPA
exercises its discretion under this provision, whether by separate
standards, a collective standard, or some combination of these, as has
been proposed, does not change the fact that each of these approaches
has the same result--regulating the air pollutant which is the subject
of the contribution finding under section 202(a). It is this overall
result--regulation of the air pollutant--that determines the
applicability of PSD and title V, not the particular form of the
standards adopted under section 202(a). To reiterate, under 302(g),
``air pollutant'' means ``any air pollution agent or combination of
such agents, including any physical, chemical, biological, radioactive
* * * substance or matter which is emitted into or otherwise enters the
ambient air.'' We believe that as long as the same ``air pollution
agent or combination of such agents'' is regulated for PSD and title V
purposes as is regulated under CAA Sec. 202(a), then the PSD and title
V applicability requirements are met, whether or not the structure of
the regulation is the same as employed under section 202(a).
Accordingly, we believe that as long as the six GHGs that are the ``air
pollutant'' being regulated under CAA Sec. 202(a) are subject to PSD
and title V applicability through some metric, then the precise metric
through which they are subject to PSD and title V may differ from the
precise manner in which they are regulated under CAA Sec. 202(a).
Thus, we believe we may treat the six GHGs as a group for PSD and title
V purposes, and weight them by their GWP, even though they are
generally regulated individually under the mobile source rule.
b. Policy and Programmatic Rationale
For individual GHGs, differing CO2 equivalent factors
(such as GWP values) are found in the literature. As noted earlier in
this preamble, the U.S. and other countries report their annual
emissions of the six GHGs in terms of CO2e units, following
UNFCCC guidelines. The UNFCCC reporting guidelines for national
inventories, as updated in 2006, require the use of GWPs from the IPCC
SAR (IPCC 1996) for CO2e calculations, even though the IPCC
has subsequently updated its GWP values.\26\ Consistent with these most
recent guidelines, we are proposing to use the same SAR-derived GWP
values, which are based on the effects of GHGs over a 100-year time
horizon, for purposes of calculating GHG emissions in tpy
CO2e for this tailoring rule.
---------------------------------------------------------------------------
\26\ ``Inventory of U.S. Greenhouse Gas Emissions and Sinks:
1990-2007,'' U.S. Environmental Protection Agency, EPA 430-R-09-004,
April 15, 2009. p. ES-3. See also the SAR GWPs (IPCC 1996) in table
1-2, p. 1-6. http://www.epa.gov/climatechange/emissions/usinventoryreport.html.
---------------------------------------------------------------------------
We recognize a number of advantages in the use of a cumulative
CO2e measure (``cumulative'' here refers to the summation of
emissions of CO2e for all applicable GHGs) using GWP over an
individual, mass-based metric, including: (1) A cumulative
CO2e metric, by incorporating the GWP values, addresses the
combined radiative forcing of the GHGs emitted; (2) a cumulative
CO2e metric by definition includes any of the six primary
GHGs that are emitted and therefore would effectively include any one
or combination of the six primary GHGs that might become subject to
regulation, thus encompassing a greater variety of possible future
regulatory approaches; (3) a cumulative CO2e metric would be
consistent with the proposed mandatory reporting rule thresholds
(thereby creating a ``common currency'' for recordkeeping for both
industry and permitting authorities); and (4) a CO2e metric
could allow more flexibility for designing and implementing control
strategies that maximize reductions across multiple GHGs and would also
likely align better with possible future regulations that allow for
such flexibility.
We also considered a GHG permitting threshold metric based on
individual GHGs on a mass basis, with no GWP applied. The main benefit
of an individual-GHG-based metric is that it may provide some ability
to better differentiate sources and project emissions that affect one
particular GHG. Because of this differentiation, it also may allow for
simpler program implementation with regards to establishing emissions
limits, establishing BACT, compliance assessment, and measurement/
monitoring methods. However, we believe that the benefits in using the
cumulative group of GHGs outweigh any implementation advantages to
using an individual-GHG-based metric. In particular, the cumulative-
GHG, CO2e-based metric addresses all GHGs and their
radiative forcing potential and would provide some flexibility to a
source to design and maximize GHG reductions across the facility.
Conversely, an individual-GHG-based metric may limit a facility's
flexibility to maximize GHG reductions across GHGs and is generally
less consistent with the widespread treatment of GHGs in inventory,
reporting, and emissions
[[Page 55330]]
offset protocols mentioned in section VIII.B.1 of this preamble.
We solicit comment on the benefits and limitations of our proposed
GHG PSD and title V permitting threshold metric based on
CO2e. We also request comments on proposed alternative
metrics (such as individual GHG basis) and the effect those alternative
metrics would have on setting permitting thresholds for GHGs.
3. Possible Limitation of Proposed Metric for PSD and Title V
Thresholds and for PSD Netting Purposes
a. PSD and title V applicability thresholds
This proposed metric may also warrant a limitation for PSD and
title V threshold purposes. In rare instances, it is possible that a
source may emit only a non-CO2 GHG in very small amounts, on
a mass basis, but one that carries a very large GWP. In this case, it
is possible that the source may emit the GHG in amounts that fall below
the PSD statutory applicability threshold of 100/250 tpy on a mass
basis, and fall below the title V statutory applicability threshold of
100 tpy on a mass basis, but exceed the 25,000 CO2e PSD and
title V applicability thresholds (which, as discussed above, are
calculated on a GWP basis) proposed in this action. Under these
circumstances, the source would trigger PSD and title V under our
proposed rule even though its GHG mass emissions would not, in fact,
exceed the statutory triggers.
We seek comment on whether we should address this case; that is,
whether such a source should be subject to PSD or title V. Because the
PSD and title V statutory thresholds are expressed on a mass basis--
i.e., tpy--we are concerned that the metric proposed with this action
could have the effect of subjecting to PSD or title V requirements a
source whose emissions fall below the statutory threshold limits on a
mass basis. Accordingly, we seek comment on whether we should include
some refinements to the CO2e metric, such as adding a 100-
or 250-tpy metric that is mass-based. Under this refinement, a source
would be subject to PSD and title V only if its GHG emissions exceeded
the statutory threshold levels on an actual tonnage basis and if its
GHG emissions exceeded the first phase threshold emissions proposed in
this notice on a CO2e basis.
However, we are also concerned that efforts to address this
circumstance--for example, by requiring separate tracking of individual
GHG mass emissions in addition to CO2e for up to six gases--
would be complex and confusing to administer. Similarly, as discussed
above, we are concerned that implementing permitting only on an
individual gas basis would have several disadvantages compared to our
proposed CO2e-based approach.
b. Netting
The same issue is also a concern as the proposal relates to PSD
netting. By way of background, an existing source becomes subject to
PSD when it makes a major modification, which generally occurs when the
source is a major emitting facility and makes a physical or operational
change that increases its emissions of a regulated air pollutant by a
significant amount. In calculating the amount of the increase in
emissions, the source must add to the increase the amount of any
contemporaneous--generally, within the previous 5 years--increases and
decreases that resulted from other changes the source made. If the
total amount, so calculated, does not exceed the significance level,
then the source is not subject to PSD for the change, and instead has
``netted out'' of PSD.
In rare instances, it is possible that a source of two or more
different types of GHGs, with different GWPs, may make two or more
contemporaneous changes that increase its emissions of one type of GHG
and decrease its emissions of another type of GHG. The effect of those
changes may be that the source will have decreased its emissions of its
GHGs on a mass basis, but increased its emissions of GHGs on a
CO2e basis above the significance level. Under these
circumstances, we are seeking comment on whether that source should be
treated as being subject to PSD due to its physical or operational
change.
We could prevent the source in this example from becoming subject
to PSD by requiring that for an existing source's physical or
operational change to be treated as a modification that triggers PSD
due to its GHG emissions, the change must, taking into account
contemporaneous changes, increase GHG emissions on a mass basis by any
amount, and increase GHG emissions on a CO2e basis by the
amount of the significance level proposed in this action. However, we
are concerned that efforts to address this circumstance would be even
more complex and confusing to administer for netting than it would be
for major source determinations.
We therefore solicit comment on how best to address these
situations involving new source permitting and netting in light of our
proposed choice of a GHG PSD and title V permitting threshold metric
based on CO2e. We are asking for comment on whether these
rare circumstances should be addressed in light of the statutory
language, and if so, how. Would a mass-based metric for each individual
GHG be an appropriate way to address the issue and, if so, should it be
implemented in addition to, or in place of, our proposed
CO2e metric?
C. What is the rationale for selecting the proposed GHG permitting
thresholds for PSD?
1. Major Stationary Source Applicability Threshold for Sources of GHGs
With this action, we are proposing to establish, for the first
phase of the PSD GHG tailoring program, the PSD major source threshold
at 25,000 tpy CO2e and the significance level at 10,000 to
25,000 tpy CO2e, based on the legal doctrine of ``absurd
results'' and ``administrative necessity,'' as described in section VI
of this preamble. This first phase will be followed by a study and then
promulgation of additional rulemaking that will establish the next
phase of requirements. This section provides a more detailed discussion
of the technical and policy basis for establishing these threshold
levels.
a. Administrative Burdens Associated With the Statutory Threshold
Level and the Proposed Permitting Threshold Level
As noted previously, for PSD purposes, if we do not establish a
different ``major'' source level for GHG emitters, the effect would be
that the statutory threshold level would apply, so that GHG sources in
the 28 listed categories under CAA section 169(1) would be subject to a
100-tpy threshold, and all other GHG sources would be subject to a 250-
tpy threshold. Under this scenario, tens of thousands of sources each
year would undertake projects that would have to comply with the PSD
program, which would overwhelm the permitting authorities and interfere
with the issuance of permits to all sources, whether they emit GHGs or
not.
Accordingly, EPA is proposing a PSD ``major'' source applicability
threshold of 25,000 tpy CO2e. The rationale for this level
is to reduce the administrative burden to the point where it is no
longer administratively impossible to implement the PSD program.
Although requiring permitting authorities to permit sources of GHG
emissions at 25,000 tpy CO2e and higher would increase the
level of PSD permitting and therefore increase administrative burdens,
compared to current permitting levels, EPA believes that this increase
would not exceed the capacity
[[Page 55331]]
of permitting authorities to implement the PSD program.
EPA calculated the administrative burden of permitting GHG emitters
at the 25,000-tpy CO2e threshold level as follows: As noted
earlier in this preamble, EPA conducted a threshold data analysis that
provided information on the numbers of facilities that could
potentially be subject to PSD review under different CO2e-
based emissions thresholds and the administrative resources needed to
process permits for these facilities. Through the process described in
this section of the preamble, we estimate that, at a 25,000-tpy
CO2e applicability threshold for PSD major sources,
approximately 400 additional new or modified facilities would be
subject to PSD review in a given year. These include approximately 130
new facilities and approximately 270 modifications at existing major
sources that would be subject to PSD review as major modifications.
Many, but not all, of these facilities would be subject to PSD review
for other pollutants that they emit. These estimates compare to the 280
PSD permits that are currently issued in a typical year.
We acknowledge that our estimates for both new facilities and
modifications are highly uncertain because they rely on growth trends
in industries and businesses, which are inherently difficult to
predict, especially under changing economic conditions.
We developed these estimates as follows: To estimate the number of
new sources, we identified the various source or industry categories
included in the threshold data analysis, along with the number of
sources in each category. We then applied source- or industry-specific
growth rates to estimate the number of new facilities that would be
added in a year at a given major source threshold for a source or
industry category. The methodology and results for estimating new
sources is described in the Technical Support Document, in the docket
for this rulemaking.\27\
---------------------------------------------------------------------------
\27\ ``Technical Support Document for Greenhouse Gas Emissions
Thresholds Evaluation;'' Air Quality Policy Division, Office of Air
Quality Policy and Standards; U.S. Environmental Protection Agency;
July 7, 2009.
---------------------------------------------------------------------------
To estimate the number of modifications at existing major sources,
EPA first calculated the number of existing facilities that would be
treated as ``major'' sources due to their PTE-based CO2e
emissions rates. At a 25,000-tpy CO2e permitting threshold,
EPA estimates that about 13,600 existing facilities would be classified
as ``major'' sources. Second, EPA determined the current rate of PSD-
permitted modifications occurring at major sources nationwide, which is
approximately 2 percent of existing major sources. The basis for this
modification rate is described in a technical support document found in
the docket for this rulemaking.\28\ Then, we assumed that GHG sources
would modify at the same 2-percent rate. Based on this assumption, EPA
estimates that approximately 270 modifications would result from a
25,000-tpy CO2e major source permitting threshold.
---------------------------------------------------------------------------
\28\ ``Methodology for Estimating Modified Sources That Would be
Subject to PSD Permitting for GHGs;'' Prepared by EPA Staff; August
2009.
---------------------------------------------------------------------------
We calculated the additional administrative burden in workload
hours and costs based on the per-permit hourly workload estimates and
costs for PSD permitting from the PSD ICR.\29\ Of the group of 130 new
sources, we estimated the number of industrial sources and of
commercial or residential sources. For the industrial sources, we
assumed that permitting authorities would need to spend 301 hours, on a
per-permit basis, for issuing permits that cover both the GHG and non-
GHG emissions. This is the same amount of time that permitting
authorities need to permit non-GHG emissions from industrial sources.
We did not assume additional workload requirements for the GHG
emissions because permitting authorities will have some experience with
the emissions units, sources, and configurations at these facilities.
Also, although there will be new and unique GHG sources to consider at
some of these facilities, this experience should provide some
administrative efficiencies in preparing and processing GHG-based
permit applications for these facilities. Note that some of the 130 new
sources would be sources that are subject to PSD only because of their
GHG emissions. We estimate that the permitting authorities would need
to spend the same amount of time and money on these permits, on a per-
permit basis, as the authorities do on new sources of non-GHG
emissions. For the commercial or residential sources, we assumed that
permitting authorities would require 20 percent of the time for
industrial sources, or 60 hours, because these sources tend to be less
complex than industrial sources.
---------------------------------------------------------------------------
\29\ ``Summary of ICR-based Data Used to Estimate Avoided Burden
and Evaluate Resource Requirements at Alternative GHG Permitting
Thresholds;'' Prepared by EPA Staff; August 2009.
---------------------------------------------------------------------------
The next group of permittees is the 270 GHG sources that are
subject to PSD each year because they undertake modifications. For
modifications involving industrial sources, we assumed that permitting
authorities would need to expend 301 hours, the same as for new
sources; for modifications involving commercial or residential sources,
we assumed 60 hours--the same, again, as for new sources.
All told, the increase in burden for permitting authorities from
including sources of GHGs at a 25,000-tpy CO2e level, on a
total national basis, would be approximately 112,000 staff hours at an
additional cost of approximately $8 million. This workload amount
represents an increase of about 1.3 times, or 32 percent, in the
current burden for permitting authorities on a nationwide basis. We
believe that this additional burden is manageable, but that it will
necessarily pose some challenge to permitting authorities, and that to
accommodate the additional burden, permitting authorities may need to
expand their resources or seek efficiencies in processing permits. We
believe that any threshold lower than 25,000 tpy CO2e, would
create undue administrative burdens. Thus, we believe that the amount
of administrative burden attendant to a threshold level of 25,000 tpy
CO2e is consistent with the administrative necessity case
law, which, as described earlier, we read to limit us to depart from
the statutory requirements to the smallest extent possible, consistent
with congressional intent.
We request specific comments on our estimated burden at the 25,000-
tpy CO2e threshold and on whether the additional workload
would be manageable to permitting authorities.
We also request comment specifically on the assumptions we used for
calculating the administrative burden from modifications. As noted
earlier, our estimate for the number of modifications that would
undergo PSD review as a result of a 25,000-tpy CO2e
permitting threshold is based on the modification rate at existing
major sources for currently regulated pollutants, which means that the
estimate assumes that the modification rate for GHG sources is similar
to that for sources of currently regulated pollutants despite the
potential difference in types of projects and significance levels. We
acknowledge that our estimates for modifications are highly uncertain
because they rely on growth trends in industries and businesses, which
are inherently difficult to predict, especially under changing economic
conditions. Thus, there is significant uncertainty in applying this
modification rate and therefore in predicting not only how many major
sources will undergo
[[Page 55332]]
physical or operational changes in any given year, but also which of
those changes would result in GHG emissions increases that would exceed
a proposed GHG significance level. We are therefore requesting specific
comment on our estimate of modification rates at major sources and
soliciting any additional information and data that would improve our
estimate of the number of modifications affecting GHG emissions at
different types of source categories.
b. Administrative Burdens Associated With Other Permitting Threshold
Levels
In addition to the 25,000-tpy threshold for CO2e, we
also considered major source applicability thresholds for PSD ranging
from 1,000 to 100,000 tpy CO2e. Using the basic analysis of
new and modified facilities that would become subject to PSD review as
described above, we estimated the number of new facilities and
modifications at each of these thresholds. A summary of these results
is shown in table VIII-1. The results shown in table VIII-1 are based
on estimates of potential to emit, measured in short tons of
CO2e, from affected facilities at each threshold level. It
should be noted that the use of short tons here, while consistent with
the units used for existing major source thresholds for other
pollutants identified in the CAA and permitting program rulemakings,
differs from the units of metric tons used in EPA's GHG Mandatory
Reporting Rule proposal. For consistency within the permitting
programs, all data and discussion in this rule are based on short tons.
We believe that the number of new permits that would be subject to
PSD at the 10,000-tpy-and-below CO2e major source thresholds
would not be administratively feasible for permitting authorities. For
example, we estimate that the 10,000-tpy CO2e threshold
would cause an approximately three-fold increase in the number of PSD
permits annually (830 compared to 280), resulting in an additional
workload for permitting authorities of approximately 187,000 hours, or
an increase of about 2.2 times over their current PSD workload. We
believe that this increase in the number of PSD permits and workload
would create insurmountable resource demands for permitting agencies in
the near term, which would jeopardize the functioning of the PSD
program. These time demands are due to not only the increase in number
of permits but also the need to implement BACT determinations, GHG
emissions evaluations, and other evaluations required under the PSD
program for a wide variety of formerly unpermitted sources, including
significant numbers and varieties of small manufacturing and commercial
establishments. Permitting authorities would confront substantial
challenges because the authorities have little experience with these
sources and their GHG emissions.
We request comment on our assessment of the impact of major source
GHG thresholds lower than 25,000 tpy CO2e on PSD program
administration, including any additional information on the number of
sources and modification projects that might be affected at these lower
thresholds for different GHG source categories. We also request comment
on our conclusion that the 10,000-tpy threshold (or a lower threshold)
would be too low to sufficiently address the administrative concerns.
Table VIII-1--Estimated Number of Existing Facilities and Annual Number of Newly Constructed Facilities and
Modifications Potentially Subject to PSD Review at Different GHG Major Source Thresholds
----------------------------------------------------------------------------------------------------------------
Number of
modifications at
Number of Number of new existing
existing facilities that facilities that
Major stationary source threshold level (tpy CO2e) facilities would exceed would exceed
exceeding threshold threshold
threshold (facilities/yr) (modifications/
yr)
----------------------------------------------------------------------------------------------------------------
1,000..................................................... 278,340 4,330 5,567
5,000..................................................... 52,888 532 1,058
10,000.................................................... 26,898 289 538
25,000.................................................... 13,661 128 273
50,000.................................................... 7,245 77 145
100,000................................................... 4,850 66 97
----------------------------------------------------------------------------------------------------------------
At the 50,000-tpy CO2e threshold, we estimate
approximately 220 PSD permit actions due to GHG emissions. We do not
believe that this level of permit activity would challenge the capacity
of permitting authorities to properly administer the PSD program to the
extent we described above for the 25,000-tpy CO2e threshold.
As noted elsewhere in the legal discussion of the absurd results and
administrative necessity doctrines, we are foreclosed from adopting
higher thresholds when we believe a lower threshold would be possible
to implement. We request comment on our assessment of the impact of
major source GHG thresholds higher than 25,000 tpy CO2e on
PSD program administration, including any additional information on the
number of sources and modification projects that might be affected at
these higher thresholds for different GHG source categories. We also
request comment on our determination that this assessment supports a
conclusion that the 25,000-tpy threshold is administrable and thus we
do not need to adopt a threshold of 50,000 tpy. We note that the
50,000-tpy level does involve about 6,400 fewer major sources than the
25,000-tpy level, including about 1,600 sources that would have been
newly defined as major (e.g., landfills, hospitals, offices, hotels).
In light of this, we specifically ask for comment on whether a 50,000-
tpy level, which would exclude these sources, is administratively
necessary.
c. Emissions Impacts
We also evaluated the amount of GHG emissions emitted by facilities
that would be subject to PSD requirements at the proposed thresholds,
although, strictly speaking, this information is not relevant to the
administrative-necessity basis for selecting the proposed major source
threshold level for CO2e. The objective of the emissions
evaluation was to generally assess the extent to which, on a national
basis, GHG emissions sources would be covered at the proposed
thresholds. The basis for this evaluation, with a detailed summary of
the results, is provided in the docket for this rulemaking.\30\
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\30\ ``Technical Support Document for Greenhouse Gas Emissions
Thresholds Evaluation; Air Quality Policy Division, Office of Air
Quality Policy and Standards; U.S. Environmental Protection
Agency''; July 7, 2009.
---------------------------------------------------------------------------
We estimate that a 25,000-tpy CO2e threshold captures
approximately 68
[[Page 55333]]
percent of national CO2e stationary source GHG emissions
(including approximately 87 percent of CO2). This emissions
coverage is comparable to national stationary source NOX
emissions coverage of 72 percent at the existing PSD major source
permitting threshold of 250 tpy NOX. Lowering the
CO2e threshold to 10,000 tpy increases the amount of
emissions covered by only 2 percent compared to the 25,000-tpy
threshold but almost doubles the number of facilities covered. We
estimate that a 10,000-tpy CO2e threshold would also affect
approximately 7,000 commercial and multi-family residential sources. A
50,000-tpy CO2e threshold would virtually eliminate all of
the commercial/residential sector from being affected for GHG but would
fail to capture some high emitters within key GHG categories (for
example, iron/steel, refineries, electric generation, pulp and paper,
petrochemical) and would reduce emissions coverage by about 2 percent
compared to 25,000 tpy CO2e. A summary of the percentage of
national stationary source GHG emissions associated with the affected
facilities at different GHG emission thresholds is shown in Table VIII-
2.
Table VIII-2--Percentage of National Stationary Source GHG Emissions
From Affected Facilities at Different GHG Emission Thresholds
------------------------------------------------------------------------
Percent of
Number of national
Major stationary source threshold existing stationary
level (tpy CO2e) facilities source GHG
exceeding emissions
threshold (percent)
------------------------------------------------------------------------
1,000............................... 278,340 73
5,000............................... 52,888 71
10,000.............................. 26,898 70
25,000.............................. 13,661 68
50,000.............................. 7,245 65
100,000............................. 4,850 64
------------------------------------------------------------------------
Estimates of emissions coverage at different thresholds are not the
same as estimates of the actual quantities of emissions that would be
reduced through the PSD permitting program at these permitting
thresholds; however, they do illustrate that at the proposed 25,000-tpy
CO2e source threshold, the most significant contributors to
stationary source GHG emissions would still be covered by the PSD
program as major sources, and therefore any modifications or new
additions at these source categories would potentially be subject to
PSD requirements, including BACT.
2. Significance Levels
With this action, we are also proposing a temporary, first phase
GHG PSD significance level threshold based on administrative necessity.
As noted previously, there are no existing PSD significance levels set
for any of the GHG pollutants.
Until we establish significance levels for these pollutants, those
levels in effect remain at zero tpy, so that any physical or
operational change that increases GHG emissions by any amount would
constitute a modification and therefore would be subject to PSD. Thus,
for any major source, any minor change that increases fuel combustion
even slightly would increase GHG emissions and, as a result,
potentially trigger PSD review. As with administrative burdens
associated with the statutory major source PSD applicability threshold,
the burdens associated with the hundreds of thousands of modification
projects that would have to comply with the PSD program under these
circumstances would be enormous, at least in the short term. They would
overwhelm the permitting authorities as well as the regulated
community, and would interfere with the issuance of PSD permits to
sources of all types, whether emitting GHGs or not.
As a result, we believe that the same legal doctrines of absurd
results and administrative necessity apply for establishing the
significance level. We need to phase in a significance level for GHGs
by establishing, in the first phase, a reasonable significance level
based on administrative necessity, and then by conducting a study and
promulgating further rulemaking to establish the requirements for the
second phase.
To do so, we need information concerning the number of modification
projects occurring at a facility level for different source categories
that would exceed various possible significance levels for GHGs in any
given year. However, it is very difficult to acquire or develop this
information--and therefore there is great uncertainty in calculating
specific administrative burdens associated with modifications--for
several reasons. First, information is not available across sectors and
source categories on the types and numbers of specific physical and
operational changes that would result in emissions increases in amounts
that can be estimated and that therefore can be compared to various GHG
emissions significance levels. Second, there is general uncertainty in
how many project modifications will occur within any given year because
decisions on these projects are driven by facility- and sector-based
growth patterns and business planning decisions. Lastly, some source
categories and units that emit GHGs have not previously been subject to
any type of permitting or reporting requirements; as a result, for
these sources, there is very little historical record for use in
estimating the number and types of projects that would occur at these
sources and, in turn, establish an appropriate significance level for
GHGs.
Absent comprehensive information on the types and numbers of
modification projects nationally that result in increases in GHG
emissions, we are proposing and soliciting comment on a range of
possible significance levels for CO2e. Our proposed range
starts at 10,000 tpy CO2e, which reflects, subject to the
uncertainty noted above, our current estimate of what would constitute
a GHG significance level below which permitting authorities would be
unable to adequately administer PSD, and goes up to 25,000 tpy
CO2e, which is our proposed major source applicability
threshold for GHGs under PSD. We believe that a 25,000-tpy
CO2e significance level for GHGs would be the highest level
we could consider because it is not reasonable to propose a
significance level that is higher than the proposed major source
threshold.
We selected the GHG significance level at the lower end of the
proposed range by analyzing inventory
[[Page 55334]]
information for key source categories that would have a substantial
number of modification projects potentially subject to PSD permitting
requirements for GHGs. Most importantly, depending on the significance
level for CO2e, small fossil fuel-fired combustion units,
which are numerous and ubiquitous, could have a substantial number of
modifications that would be subject to PSD. Our threshold data analysis
shows that almost 80 percent of the facilities that exceed the 25,000-
tpy CO2e major source threshold do so because of fossil fuel
combustion units that emit CO2. Also, the U.S. national GHG
inventory shows that approximately 80 percent of all GHG emissions
result from fossil fuel combustion sources. The prevalence of
combustion units across all affected sectors, and the dominant
contribution of CO2 fuel combustion-related emissions to
their GHG emissions total, leads us to conclude that an administrative
necessity-based significance level for CO2e should be based
on modifications that involve these combustion units.
Thus, we analyzed sales data for two of the most affected
categories of units: Boilers and stationary engines. Our analysis
indicates that, on a yearly basis, almost 2,000 of these new combustion
units would emit more than 10,000 tpy CO2e. The exact number
of PSD permits that would result from modifications involving these new
emissions units would likely be less than 2,000, depending on whether
these units are located at a major source facility, whether multiple
units are aggregated at one facility or the units are placed at
different facilities, and whether they are considered new additions/new
capacity or one-for-one replacements. However, we believe these data on
combustion unit sales suggest that the significance level should be at
least 10,000 tpy CO2e because, while the estimated
population of new units with the potential to trigger PSD is something
below 2,000 per year, that is still likely well above the current
number of modifications (fewer than 300) that are currently subject to
PSD each year. Any lower level would risk enormous numbers of permit
applications that would be administratively impossible to process, and
therefore we do not propose a GHG significance level lower than 10,000
tpy CO2e. Further support for the 10,000-tpy CO2e
level is the fact that the combustion units in the industrial sector
that emit GHGs at this rate tend to be larger units: boiler-type units
with an approximate heat input rating of 15-20 MMBtu/hr (depending on
fuel type); and stationary internal combustion (IC) or compression
ignition (CI) engines with a rating of greater than 2,000 horsepower.
Units of this size provide a good representation of combustion units
utilized in the industrial sector that should be subject to PSD. At the
same time it does not capture an enormous number of very small
combustion units that would overwhelm permitting authorities from an
administrative standpoint. For example, using the same sales
information referenced above on combustion units, we estimate that
approximately 29,000 new boilers and stationary engines would exceed a
250-tpy CO2e level. A summary of our significance level
analysis for CO2e is provided in the docket for this
rulemaking.\31\
---------------------------------------------------------------------------
\31\ ``Summary of Administrative Necessity Basis for a
CO2-e Significance Level''; Prepared by EPA Staff; August
2009.
---------------------------------------------------------------------------
Although our significance level range is driven by our analysis of
CO2 combustion units, we believe that the level of 10,000
tpy CO2e should be administratively feasible for other
sources of GHG emissions. Our threshold data analysis shows
approximately 3,000 facilities that would have the potential to emit
amounts of non-CO2 GHGs exceeding a 25,000-tpy
CO2e major source threshold based on their non-
CO2 emissions alone. Although this estimate is not directly
related to the number of possible modification projects that may exceed
a 10,000-tpy CO2e significance level for non-CO2
emissions alone, this estimate provides a relative sense of the number
of facilities emitting non-CO2 emissions at rates that
approximate the 10,000-tpy CO2e level, only a portion of
which may actually undergo modifications that would potentially be
subject to PSD review. For example, if the 3,000 facilities are assumed
to have a modification rate of 2 percent, as described above, and each
modification results in emissions increases of at least 10,000 tpy
CO2e (in, again, non-CO2 GHG emissions), then
approximately 60 modification projects would come under PSD review just
for principally non-CO2 sources. This alone would be an
approximate 20- to 25-percent increase above the current level of 280
annual permits. We believe that an additional PSD permit increase of
this magnitude, on top of the modifications resulting from
CO2 emissions from combustion-related projects, may stretch
the capacity of, but may not necessarily create an unadministrable
burden for, permitting authorities.
Although we believe 10,000 tpy CO2e represents a
reasonable lower bound for the range we are proposing for the GHG
significance level, we specifically request comments on whether: (1) A
level lower than 10,000 tpy CO2e would still be
administratively feasible; (2) a level higher than 25,000
CO2e is necessary to avoid an administratively overwhelming
number of modification projects becoming subject to PSD permitting due
solely to their GHG emissions; and (3) there are data suggesting an
appropriate number we should select within the 10,000- to 25,000-tpy
range. In suggesting alternative thresholds, we request that commenters
submit any available information and data that would allow us to better
characterize the number and types of modification projects that would
become subject to the PSD program at different GHG significance levels
and for different types of source categories.
We note that this basis contrasts with that of our prior
significance levels determinations, which were based on de minimis
emissions levels.
D. What is the rationale for selecting the proposed first phase GHG
permitting threshold for title V?
With this action, we are proposing a temporary, first phase GHG
title V major source threshold of 25,000 tpy CO2e, based on
the administrative imperatives that underly both the absurd results and
administrative necessity legal doctrines.
As noted earlier, if we do not establish a different ``major
source'' level under title V for GHG sources, those sources would
become subject to the statutory 100-tpy threshold. Under these
circumstances, we estimate that 6.1 million sources would have to
comply with the title V permitting program. The resulting
administrative burdens would be enormous in the short term and would
overwhelm the permitting authorities, as well as posing severe burdens
on the regulated community. Accordingly, we need to phase in title V
applicability by establishing, in the first phase, an administrable
permitting threshold, and then by conducting a study and promulgating
further rulemaking to establish the requirements for the second phase.
The criterion for establishing the title V major source threshold
is to reduce administrative burdens to the point at which the title V
program can be implemented. Our analyses, discussed in detail later in
this preamble, establish this threshold at 25,000 tpy CO2e.
Although this level would likely see an increase in the volume of title
V permitting, compared to current permitting levels, and although this
increase would pose some challenges to
[[Page 55335]]
permitting authorities, EPA believes that this increase would not
exceed the capacity of permitting authorities to implement the program.
The title V permitting program requires all existing major sources
to obtain operating permits, as compared to the PSD program, which
requires permits only for newly constructed major source facilities and
major modifications at existing major sources. Therefore, to evaluate
permitting thresholds for title V, we analyzed the number of existing
facilities that would exceed a given GHG threshold. We considered
alternative major source thresholds ranging from 1,000 to 100,000 tpy
CO2e.
Our estimates for the existing number of facilities whose emissions
would exceed different GHG thresholds are summarized in table VIII-1
and discussed in more detail in the Technical Support Document in the
docket for this rulemaking.\32\ For comparison purposes, note that
currently there are approximately 14,700 title V operating permits
nationwide. We estimate that at a 25,000-tpy CO2e permitting
threshold, about 13,600 existing facilities would be classified as
``major sources'' for their PTE-based CO2e emissions. As
discussed later in this preamble, these 13,600 facilities present
additional workload demands on permitting authorities, either because
they are not currently required to obtain a title V permit (because
their non-GHG emissions fall below the ``major source'' threshold) or
because, although they already are required to obtain a title V permit
(due to their non-GHG emissions), their permits would need to be
revised to cover their GHG emissions. In contrast, at a 10,000-tpy
CO2e threshold the number of existing facilities exceeding
the threshold jumps to almost 27,000. At a 50,000-tpy CO2e
threshold, the number of existing facilities exceeding the threshold
falls to about 7,200. We believe, based on these estimates, that a
25,000-tpy CO2e major source threshold is appropriate
because it renders the title V program administrable, albeit with
additional workload requirements. As discussed later in this preamble,
as we move below the 25,000-tpy CO2e threshold, we believe
the administrative burdens related to the increasing number of
facilities covered, as well as to the variation in the type of
facilities covered, become insuperable. At both the 50,000- and
100,000-tpy CO2e thresholds, however, we do not believe that
the potential level of permit activity would fill the capacity of
permitting authorities to properly administer the title V program, and
similar to PSD considerations, we believe it would potentially exclude
some high-emitting facilities within key GHG source categories.
---------------------------------------------------------------------------
\32\ ``Technical Support Document for Greenhouse Gas Emissions
Thresholds Evaluation; Air Quality Policy Division, Office of Air
Quality Policy and Standards; U.S. Environmental Protection
Agency''; July 7, 2009.
---------------------------------------------------------------------------
Although we believe a 25,000-tpy CO2e threshold would
add an additional permitting burden to permitting authorities, we
believe that this additional burden could be adequately administered.
We expect that many of the 13,600 existing facilities that would exceed
the proposed 25,000-tpy CO2e threshold--the majority of
which consist of electric generating units and industrial facilities--
already have a title V operating permit for other regulated pollutants,
and thus would potentially require only a permit revision or
modification to address GHGs. We believe that these permit revisions or
modifications under title V would initially be limited due to the lack
of new applicable GHG requirements to include in the permits, but would
increase in complexity and content as facilities move through PSD
permitting processes and as other possible stationary source
requirements emerge.
In addition, with a 25,000-tpy CO2e threshold, some of
the 13,600 existing facilities are not currently subject to title V
requirements and therefore would require new title V permits. These
facilities constitute primarily additional landfills (we estimate
approximately 1,700 landfills may be added to the title V program) and
some large commercial facilities, primarily large hospitals. These
facilities number approximately 800, but the number of new permits they
would need would be less than this because approximately 180 are
currently subject to permitting under title V for pollutants currently
subject to regulation under the Act. Permitting the newly subject
sources would not solely involve GHG requirements but may also involve
other pollutants emitted by the source.
We estimate that the combination of title V permit revisions,
modifications, and new permits that would result from a 25,000-tpy
CO2e applicability threshold would require an estimated
additional 492 FTEs by permitting authorities nationwide, or an
estimated 50-percent increase over current title V staffing levels, to
meet the initial permitting requirements that would apply at the time
title V applicability is triggered for GHG sources. We do not believe
this 50-percent increase in resources would be administratively
impossible to achieve, given that title V is self-funded, and that
there are efficiencies gained in revisiting existing title V permits
and sources with which the permitting staff are familiar.
In contrast, at a 10,000-tpy CO2e threshold, we estimate
that an additional 1,357 FTEs (an estimated 135-percent increase over
current title V staffing levels) would be required by permitting
agencies nationwide (again, based on initial permitting requirements).
In addition, there would be substantial influx of new title V permits--
greater than 13,000--that would need to be processed and issued. This
would include over 7,000 newly permitted commercial and residential
sources covering a wide variety of source types, including office
buildings, retail malls, hotels, apartment buildings and educational
facilities. The new variety of sources included at the lower threshold
also would require additional training for permitting staff to become
familiar with the configuration and emissions from those sources. For
these reasons, we believe that at threshold levels below 25,000 tpy
CO2e, even considering the capability of permitting
authorities to eventually add additional staff funded through
permitting fees, permitting authorities would not be capable of
ensuring reasonable processing times for both new permits and revisions
resulting from the additions of GHG emitters to the program.
We request specific comment on our estimated burden at the 25,000-
tpy CO2e major source threshold for title V and on whether
the additional workload would be manageable to permitting authorities.
We also request specific comment on our assessments of the impact of
title V major source GHG thresholds higher and lower than 25,000 tpy
CO2e on title V program administration, including any
additional information on the number of sources affected and the
permitting burdens created at these thresholds. We further request
comment on our conclusion that the 10,000-tpy threshold (or a lower
threshold) would be too low to address the administrative necessity
concerns, that the 25,000-tpy threshold is administrable, and that
there is therefore no need to adopt a threshold of 50,000 tpy.
There are additional policy and programmatic considerations that,
while not part of the administrative-necessity basis, also support
establishing the major source GHG threshold for title V at 25,000 tpy
CO2e. Most importantly, this level would result in
consistency between the PSD and title V permitting threshold for GHG
sources. Historically, there has been a strong measure of
[[Page 55336]]
consistency in the PSD and title V permitting levels since there is a
generally applicable 100-tpy ``major source'' applicability threshold
in title V and there is a 100-tpy ``major emitting facility''
applicability threshold applied in PSD for sources in 28 key industrial
source classifications. In addition, there is a strong programmatic
incentive for the programs to share a common permitting threshold.
Because at least initially GHG requirements from the PSD permitting
process would constitute the only applicable requirements to be
included in the title V permits for many sources, a title V permitting
threshold lower than the PSD threshold would create numerous ``empty''
or ``hollow'' permits, that is, permits that do not include any
applicable requirements, and many previously unpermitted commercial
sources would be required to obtain these hollow permits. Permits
hollow in this respect may be viewed as unnecessary and wasteful by the
permitting authorities and regulated community. Further, requiring such
permits may be at tension with a primary purpose of title V to promote
compliance and facilitate enforcement by gathering into one document
the requirements that apply to a particular source. See CAA Section
504(a) (each title V permit must contain terms ``necessary to assure
compliance with applicable requirements'' of the CAA), H.R. Rep. No.
101-490, at 351 (1990) (``It should be emphasized that the operating
permit to be issued under this title is intended by the Administration
to be the single document or source of all of the requirements under
the Act applicable to the source.'').
E. How will EPA assess the GHG permitting thresholds in the first phase
of the tailoring program, and how will EPA develop the second phase?
1. Assessment To Be Performed Within 5 Years Following Promulgation of
the First Phase
We consider the actions proposed in this rulemaking to set higher
GHG major source applicability thresholds for PSD and title V, and to
establish a GHG PSD significance level, as interim measures that will
need to be reassessed in terms of their administrative necessity.
Therefore, as part of this proposed action, we are committing to
evaluate the effectiveness of the first phase of the tailoring program,
which consists of the proposed GHG thresholds, to enable PSD and title
V permitting authorities to adequately administer their programs with
the inclusion of GHG emissions sources. We are proposing to complete
this evaluation within 5 years from the effective date of this final
rulemaking. The results of this study will form the basis for further
regulatory action that will constitute the second phase, which may
include continuing or lowering the GHG applicability thresholds for PSD
and/or title V set in the first phase, adoption of other streamlining
techniques that more accurately reflect the administrative capabilities
of permitting authorities to address GHG sources during the second
phase, and/or taking other actions consistent with the goal of
expeditiously meeting CAA requirements in light of the administrative
burden that remains at that time.
We believe a 5-year period is necessary for the evaluation of the
first phase of the tailoring program to provide an adequate period of
time for permitting authorities to implement the proposed GHG
permitting thresholds and for a sufficient record of implementation
experience to be compiled. We also believe a number of important
activities undertaken by EPA and the States over the 5-year evaluation
period could potentially impact permitting authorities' administrative
capabilities to address GHG emissions sources, and we need sufficient
time to implement those activities and assess that impact. These
activities will include the following:
The first activity is the development of streamlining
tools to specifically address GHG sources. As discussed in section
VII.A of this preamble, several permit streamlining techniques may have
applications for GHG emissions sources. However, EPA needs an estimated
3 to 4 years to fully develop some of these techniques. Because many of
these techniques are source-specific, or at least source category-
specific--e.g., presumptive BACT determinations--EPA may not be able to
develop them for all affected sources within the evaluation period.
However, we anticipate that EPA may make sufficient progress on enough
streamlining techniques to impact the administrative capabilities of
permitting authorities to address GHG emissions sources.
The second activity during the 5-year period involves the
ability of permitting authorities to add more staff to their permitting
programs, especially the title V program for which additional fees for
GHG emissions may support the addition of new staff. Based on the
summary of State data on impacts of GHG emissions permitting, it is
likely that even under the best-case scenarios, at least a 3- to 4-year
period is necessary for most permitting authorities to add and
adequately train staff for permitting duties involving GHG emitters.
Therefore, we expect that the impact of increased staffing on the
administrative capabilities of permitting authorities will be better
known by the fifth year of the threshold evaluation period.
The third activity is the collection of more detailed
emissions information resulting from implementation of the proposed GHG
mandatory reporting rule. Many permitting authorities have not had any
experience to date with quantifying or evaluating emissions and
controls of GHG source categories. EPA's proposed GHG mandatory
reporting rule will produce significant information about key GHG
emissions source categories that will help permitting authorities and
EPA better understand the characteristics and quantities of GHG
emissions, particularly at the facility level. Reporting facilities
will begin to submit data in the year 2011, and we expect a substantial
record of emissions data to be collected during the evaluation period.
We believe that these facility-level GHG data will be an important
component to increasing permitting staff knowledge of GHG emissions
sources and will have a positive impact on the permitting staff's
ability to address GHG emissions in their programs. We also believe
this information will provide additional insight into the level and
types of GHG emissions occurring at different facility types that
should support EPA's reevaluation of the first phase GHG permitting
thresholds.
The fourth activity during the 5-year assessment period is
the development of background information on control technologies and
costs for GHG emissions source categories. As discussed in more detail
in section X of this preamble, one of the administrative constraints is
the fact that permitting authorities must apply BACT to GHG sources
subject to PSD, but that endeavor would be highly resource-intensive.
The 5-year assessment period will allow EPA and the States to develop
information to evaluate GHG control techniques and costs, which, in
turn, will be the basis for BACT determinations involving GHG emissions
sources.
The 5-year period will serve other purposes, too, including
allowing EPA to analyze the impacts of permitting smaller GHG sources
to develop methods to mitigate those impacts. To date, EPA has
collected very little information on the site-specific configuration
and GHG emissions characteristics of many of the smaller industrial and
commercial source categories. As a result, it is difficult to fully
assess the impact of GHG
[[Page 55337]]
emissions permitting on these sources. We believe the 5-year evaluation
period will provide EPA the opportunity to develop a more comprehensive
profile of these smaller GHG source categories, which will allow a
better assessment of the impacts on the small business community and,
in turn, ways to mitigate those impacts.
Although we believe there are sufficient reasons to justify a 5-
year evaluation period, we ask for comment on whether the activities
described above--or at least some portion of them sufficient to begin
administering permit programs for significant numbers of sources below
the proposed 25,000-tpy CO2e threshold--could be
accomplished in a shorter time frame than our initial estimates. For
example, we ask for comment on whether 3 years would be a sufficient
evaluation period. We are especially interested in understanding the
basis for such an alternative time period and what activities would
need to occur during the period.
We further note that, for the proposed applicability thresholds as
described above, we did consider a step-down approach for phasing in
GHG permitting thresholds for PSD and title V programs. Under a step-
down approach, applicability thresholds for GHGs would be lowered to
predetermined step-down levels at specified intervals, such as every 2
years or more. However, we rejected the step-down approach on the basis
that, without having established sufficient information on source-
specific emissions and absent a record of experience with permitting
GHG emissions sources on the part of permitting authorities, we were
not in position to establish and support specific step-down thresholds.
We believe that establishing further specific step-downs prior to
evaluating the impact of the proposed GHG thresholds included in this
rulemaking, as well as the impact of the proposed streamlining
techniques, would prematurely determine what is administratively
feasible for permitting authorities to undertake in terms of permitting
GHG sources. Nonetheless, in light of the necessity of ultimately
achieving compliance with the statute, we solicit comment on whether
such an approach, coupled with regular examination of whether the
administrative situation is improving, is an appropriate way to achieve
compliance while taking into account the administrative imperatives. If
so, we ask for suggestions on how we could structure such an approach
(e.g., when future phases should begin, how we should determine the
appropriate thresholds for each phase, etc.)
2. Rulemaking Based on Threshold Evaluation for Second Phase of
Tailoring Program
We propose to commit, by rule, that by 6 years after promulgation
of the first phase of the tailoring program, and following completion
of the threshold evaluation study, we will promulgate a follow-up
rulemaking that will establish the second phase of the program. This
rulemaking will either confirm the continued use of the GHG permitting
thresholds implemented for the first phase, or promulgate alternative
GHG permitting thresholds or other streamlining techniques. The results
of the 5-year threshold evaluation study will form the basis for
determining what thresholds or other techniques will be promulgated in
the second phase rulemaking.
At this time, we cannot anticipate specifically what the second
phase of this tailoring program will consist of. The situation that we
confront is unprecedented. However, we believe the process of
establishing the first phase and then assessing it, combined with the
development of other streamlining techniques to the extent possible,
will provide a sufficient basis for EPA to propose a rulemaking to
establish the second phase. Of course, that rulemaking will provide
ample opportunity for affected parties to comment on their experiences
with the administrative burden at current GHG permitting thresholds and
to make recommendations for any changes in the thresholds, for adoption
of other streamlining techniques, and/or for actions consistent with
the goal of expeditiously meeting CAA requirements in light of the
administrative burden that remains at that time.
IX. What would be the economic impacts of the proposed rule?
This section of the preamble examines the economic impacts of the
proposed rule including the expected benefits and costs of the proposed
rule on affected entities. This proposed rule lifts, for a period of 6
years, the burden to obtain a title V operating permit required by the
CAA for smaller sources of GHGs and the burden of PSD requirements for
smaller new or modifying sources of GHGs. Thus, this rule provides
regulatory relief rather than regulatory requirements for these smaller
GHG sources for a period of 6 years. For larger sources of GHGs, there
are no direct economic burdens or costs as a result of this proposed
rule, because requirements to obtain a title V operating permit or to
adhere to PSD requirements of the CAA are already mandated by the Act
and by existing rules and are not imposed as a result of this proposed
rulemaking.
The regulatory impact analysis (RIA) conducted for this proposed
rule provides details of the benefits or regulatory relief that smaller
GHG sources will experience in terms of costs avoided as a result of
this proposed rule and the potential for social costs in terms of
foregone environment benefits during this 6-year period. Complete
details of the regulatory impact analysis conducted for this proposed
rule may be found in the document ``Regulatory Impact Analysis for the
Proposed Greenhouse Gas Tailoring Rule,'' in the docket for this
rulemaking.
This rulemaking provides permitting thresholds for sources of GHGs
that exceed levels contained in the CAA. Specifically, sources with the
potential to emit less than 25,000 tpy CO2e are not required
to obtain an operating permit or PSD permit for a period of at least 5
years at which time a study will be conducted and the decision
revisited after 6 years. In the 6 years following promulgation of this
rule, the EPA estimates that, compared to baseline estimates that do
not include the effects of this rule, over six million sources of GHG
emissions will be allowed to operate without a title V operating permit
and tens of thousands of new sources or modifying sources per year will
not be subject to PSD requirements for GHGs. For this large number of
smaller sources, this rule alleviates the regulatory burden associated
with obtaining an operating or PSD permit or complying with NSR BACT
requirements. Therefore, this proposed action may be considered
beneficial to these small entities as it provides relief from
regulation that would otherwise be required.
This decision does potentially have environmental consequences in
the form of lesser emission reductions during the 6-year period of
time. Given that sources between 250 and 25,000 tons per year account
for an estimated 7 percent of the six directly emitted GHGs nationally
from industrial, commercial, and residential source categories, while
representing over 95 percent of the total number of sources potentially
requiring an operating or PSD permit for GHGs under current permitting
thresholds in the CAA, the EPA believes this is a prudent decision.
Requiring such a large number of small sources to obtain permits for
the first time would overtax the permitting authorities' abilities to
process new permits without commensurate benefits. Moreover, as
described in section VII.C
[[Page 55338]]
of this preamble, reductions from these small sources will still be
occurring, notwithstanding the fact that permitting requirements would
not apply to them. These smaller sources of GHG will be the focus of
voluntary emission reduction programs and energy efficiency measures
that lead to reductions in GHGs. The EPA will also reevaluate this
decision after a 6-year period and complete a study of the implications
of permitting smaller GHG sources for those sources and permitting
authorities.
A. What entities are affected by this rule?
As previously stated, this proposed rule is essentially providing
regulatory relief and does not include direct regulatory provisions for
any industrial, commercial, or residential entities. An analysis is
presented for smaller sources expected to experience regulatory relief
from this rule. This proposal increases the threshold to obtain a title
V operating permit to PTE levels of 25,000 tpy CO2e or
greater annual emissions. New sources of GHG emissions with the
potential to emit less than 25,000 tpy CO2e that would
otherwise be subject to PSD are not required to obtain a PSD permit or
to comply with BACT regulatory requirements as a result of this
proposed rule. The significance levels for major modifications at
sources of GHG emissions are also increased in this proposal allowing
small sources to forego obtaining a PSD permit and to avoid BACT
regulatory requirements, when the projected emissions increase from
such modification is less than the PSD significant level (with the
promulgated level to be selected from a proposed range of values
between 10,000 and 25,000 tpy CO2e). The industry,
agricultural, residential and commercial categories anticipated to
experience regulatory relief are shown in table IX-1. As table IX-1
shows, this proposal lifts permitting requirements for over six million
potential title V sources and tens of thousands of potential PSD new
sources that would be otherwise required by the CAA to obtain permits.
Table IX-1--Estimated Number of Affected Sources Experiencing Regulatory
Relief*
------------------------------------------------------------------------
Number of sources
experiencing regulatory
relief
Sector -------------------------
New PSD
Title V (annually)
------------------------------------------------------------------------
Electricity................................... 161 20
Industrial.................................... 156,545 303
Energy........................................ 3,644 35
Waste Treatment............................... 1,431 0
Agriculture................................... 37,351 299
Commercial.................................... 1,354,760 12,034
Residential--
Multifamily............................... 610,340 6,397
Residential--
Single Family............................. 3,925,000 515
-------------------------
Totals................................ 6,089,232 19,603
------------------------------------------------------------------------
* Number of sources is determined on a potential to emit basis for small
sources below 25,000 tpy CO2e threshold. Estimates for PSD sources are
for newly constructed facilities and do not include modifications at
existing facilities that may also be subject to PSD requirements.
B. What are the estimated benefits to small sources due to regulatory
relief?
EPA estimated the benefits or avoided costs for sources that are
likely to experience regulatory relief from this proposal. This
analysis focuses upon the burdens that are being lifted for smaller
sources as a result of this proposed rule. In addition, an accounting
of the benefits from this proposal as measured by avoided costs for
State, local, and tribal permitting authorities is provided. These
avoided costs relate specifically to information collection costs or
burden costs postponed for smaller sources of GHG emissions otherwise
required to obtain an operating permit under title V or required to
modify an existing permit to address GHG emissions. Avoided costs shown
also include information collection requirements for additional PSD
permits postponed for new or modifying smaller sources of GHGs, as well
as the avoided costs to State, local and tribal permitting authorities.
1. What are estimated benefits or avoided burden costs for title V
permits?
Table IX-2 shows that the estimated first-year information
collection cost avoided as a result of this proposal by an industrial
source required to obtain a title V operating permit is approximately
$46.4 thousand (2007$) per permit. The EPA estimates that over 195
thousand sources will avoid incurring these permitting costs for a
period of at least 6 years as a result of this proposal. The avoided
burden cost to obtain a new commercial or multi-family residential
operating permit is estimated to be approximately $5.0 thousand (2007$)
per permit with over 5.9 million sources benefitting by not incurring
these costs due to this proposed rule. In total, EPA estimates that
more than $38 billion (2007$) in expenditures relating to title V
permitting will be avoided by small sources of GHG for a period of 6
years as a result of this proposal. Much of this burden would have been
incurred during the first year following the light-duty vehicle rule
because sources have 1 year from the date of becoming subject to title
V. However, some ongoing burden for new sources coming into the program
would be incurred each subsequent year. State, local, and tribal
permitting authorities will also benefit in terms of avoided permitting
administrative costs by over $15 billion (2007$) as a result of the
decisions proposed in this action. This burden would not all have been
incurred during the first year following the light-duty vehicle rule,
but much of it would generally have been incurred within the first 2 to
3 years. This is because under the part 70 regulations, permitting
authorities are required to act on applications within 18 months of
receipt. There would also be some ongoing burden in each subsequent
year due to new sources coming into the program.
[[Page 55339]]
Table IX-2--Regulatory Relief Provided for Small GHG Sources and
Permitting Authorities
------------------------------------------------------------------------
Small GHG sources not covered during
first phase < 25,000 tpy
--------------------------------------
Program/affected entities Per-permit Total cost
cost Number of (millions
(2007$) permits 2007$)
------------------------------------------------------------------------
Source
Title V:
New Industrial............... 46,350 195,895 9,079.7
New Commercial/Residential... 4,986 5,956,513 29,699.2
--------------------------------------
Subtotal Title V Permits. ........... ........... 38,778.9
PSD Permits:
New Industrial............... 84,530 3,299 278.9
New Commercial/Residential... 16,887 37,197 628.1
--------------------------------------
Subtotal PSD Permits..... ........... ........... 907.0
--------------------------------------
Total Source Costs... ........... ........... 39,685.9
Permitting Authority
Title V:
New Industrial............... 19,688 195,895 3,856.8
New Commercial/Residential... 1,978 5,956,513 11,781.9
--------------------------------------
Subtotal Title V Permits. ........... ........... 15,638.7
PSD Permits:
New Industrial............... 23,243 3,299 76.7
New Commercial/Residential... 4,633 37,197 172.3
--------------------------------------
Subtotal PSD permits..... ........... ........... 249.0
--------------------------------------
Total Permitting ........... ........... 15,887.7
Authority Costs.....
--------------------------------------
Total Source and 184.3 ........... 55,573.6
Permitting Authority
Costs...............
------------------------------------------------------------------------
Notes: (1) Costs shown in ``Sources Not Covered During First Phase''
represent estimates of the regulatory burden relief proposed by this
rule. Title V operating permit costs represent one time costs, but
these permits are subject to renewals every 5 years. New and modified
PSD permits reflect the estimated annual number of new and modifying
sources requiring permits and the associated costs.
(2) Sums may not add due to rounding.
(3) All costs are shown in 2007 dollars.
2. What are avoided burden costs associated with regulatory relief for
small PSD sources?
Table IX-2 summarizes the estimated burden costs avoided by sources
and permitting authorities with this tailoring rule. The estimated
avoided burden or reporting and recordkeeping cost associated with
requiring new industrial sources to obtain permits is estimated to be
$84.5 thousand for new or modified industrial sources and $16.9
thousand for new or modified commercial or multi-family residential
sources (2007$). This represents avoided annual costs of over $900
million (2007$) for new and modifying small sources of GHG. State,
local, and tribal permitting authorities are expected to avoid $249
million (2007$) annually in administrative expenditures associated with
postponing PSD program requirements for small GHG sources.
C. What are the economic impacts of this rulemaking?
This proposed rulemaking does not impose economic burdens or costs
on any sources or permitting authorities, but should be viewed as
regulatory relief for smaller GHG emission sources and for permitting
authorities. Although sources above the thresholds proposed in this
rule will become subject to permitting when the light-duty vehicle rule
is promulgated, those impacts are not attributable to the present
rulemaking. Rather they are mandated by the CAA and existing
regulations and automatically take effect independent of this proposal.
In addition to considering the regulatory relief expected for
affected entities as a result of this proposed rule, the EPA considered
the impact of this rulemaking to small entities (small businesses,
governments and non-profit organizations) as required by RFA and
SBREFA. For informational purposes, the RIA includes the Small Business
Administration (SBA) definition of small entities by industry
categories for stationary sources of GHGs and potential regulatory
relief from title V and NSR permitting programs for small sources of
GHG. Since this rule does not impose regulatory requirements but rather
lessens the regulatory burden of the CAA requirements to smaller
sources of GHGs, no economic costs are imposed upon small sources of
GHGs as a result of this proposed rule. Rather this proposal provides
regulatory relief for small sources. These avoided costs or benefits
accrue because small sources of GHGs are not required to obtain a title
V permit and new or modifying small sources of GHGs are not required to
meet PSD requirements for a period of 6 years. Some portion of the
small sources may be small entities, and these entities will benefit
from the regulatory relief proposed in this rule.\33\
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\33\ We note that some of the sources that remain subject to
permitting above the proposed threshold in this rule may nonetheless
be small businesses. Elsewhere in this preamble, we discuss our
intent to convene a discretionary panel to examine the small
business impacts of GHG regulation through PSD, although such
impacts are not imposed as a result of this proposed action. The RIA
provides a discussion of these impacts for informational purposes.
---------------------------------------------------------------------------
D. What are the costs of the proposed rule for society?
EPA examined the social costs of this proposed rule. These social
costs
[[Page 55340]]
represent the foregone environmental benefits that would occur if
regulatory relief were offered to small sources of GHG emissions as
proposed. This proposal is one such regulatory relief since it
increases the emissions thresholds for the title V and PSD programs, as
they apply to sources of GHG emissions, to levels above those in the
CAA. In this preamble section, the benefits or avoided regulatory costs
of such relief are discussed, but there is also a social cost imposed
by such relief because this rule may forego some of the possible
benefits associated with title V and PSD programs for sources of GHG
emissions below 25,000 tpy CO2e but above the statutory 100/
250 tpy levels. These benefits are those attributed to title V and PSD
permitting programs in general. These benefits are based upon the
relevance of these programs to policymaking, transparency issues, and
market efficiency, and therefore are very difficult to quantify and
monetize. For title V, they include the benefits of improved compliance
with CAA requirements that stem from (1) improved clarity regarding
applicability of requirements, (2) discovery and required correction of
noncompliance prior to receiving a permit, (3) improving monitoring,
recordkeeping, and reporting concerning compliance status, (4) self-
certification of compliance with applicable requirements initially and
annually, and prompt reporting of deviations from permit requirements,
(5) enhanced opportunity for the public to understand and monitor
sources' compliance obligations, and (6) improved ability of EPA,
permitting authorities, and the public to enforce CAA requirements.
However, it is important to remember that a title V permit does not add
new requirements for pollution control itself, but rather collects all
of a facility's applicable requirements under the CAA in one permit.
Therefore, the compliance benefits above are less when title V permits
contains few or no CAA applicable requirements. During the first phase
under this proposal, when the title V threshold is 25,000 tpy, we
expect that the vast majority of sources excluded from title V would be
sources that have no CAA applicable requirements for GHG emissions and
few or no requirements for other pollutants because their emissions of
those pollutants are so small. For this reason while it is extremely
difficult to measure the degree of improved compliance, if any, that
would be foregone, or to quantify the social costs that would be
imposed, we expect that they would be negligible.
For PSD, the primary social cost imposed by the tailoring rule
stems from the foregone benefit of applying BACT to the tens of
thousands of small new sources and modifications that will be below our
proposed thresholds during the first phase. This social cost
potentially weighs against the cost savings described above that stem
(in part) from avoiding the administrative and control costs of
applying BACT to these sources. The BACT requirement assures that new
and modified sources, when they increase their emissions are using
state-of-the-art emission controls and affords the public an
opportunity to comment on the control decision. It does not prohibit
increases but it assures that such controls are applied. Delaying the
BACT requirement for numerous small sources during the first phase of
this proposed rule could allow increases from these smaller sources
that are greater than they would be if BACT were applied. A detailed
analysis of this difference is beyond the scope of this rule because we
do not have detailed information on the universe of these tens of
thousands of small PSD actions, the candidate BACT technologies for
each of them, how permitting authorities would make the BACT decisions,
and how the BACT limit would compare to what would otherwise be
installed absent BACT.
It is not possible at this time to quantify the social costs of
avoided BACT. However we note that the universe of possible emissions
that would be regulated by sources excluded under the tailoring rule is
small compared to those that would remain subject to PSD. The sources
excluded in the first phase of this proposal comprise only 7 percent of
total stationary source GHG emissions, while 68 percent remain subject
to regulation. Furthermore, we expect the emissions differences due to
BACT controls for such sources to be relatively small due to the lack
of available capture and control technologies for GHG at such sources
that are akin to those that exist for conventional pollutants and
sources, as well as the likelihood that even in the absence of BACT
such sources would already be installing relatively efficient GHG
technologies to save on fuel costs. Thus, while potential benefits
would be foregone by excluding smaller sources from the permitting
programs, these benefits are likely to be small. Under the tailoring
rule, we will be working during the 6-year period to greatly improve
our understanding of both the administrative costs of regulating and
the social costs of not regulating smaller sources under PSD and title
V, and we will be relying on that information to support our future
threshold analyses called for under the proposal.
In reaching the decisions for this GHG tailoring rule, the EPA
recognizes that GHG emissions can remain in the atmosphere for decades
to centuries, meaning that their concentrations become well-mixed
throughout the global atmosphere regardless of emission origin, and
their effects on climate are long lasting and significant. A detailed
explanation of climate change and its impact on health, society, and
the environment is included in EPA's technical support document for the
endangerment finding proposal (Docket ID No. EPA-HQ-OAR-2009-0171). The
EPA recognizes the importance of reducing climate change emissions for
all sources of GHG emissions including those sources afforded
regulatory relief in this rule and plans to address potential emission
reductions from these small sources using voluntary and energy
efficiency approaches. Elsewhere, we have discussed EPA's interest in
continuing to use regulatory and/or non-regulatory tools for reducing
emissions from smaller GHG sources because we believe that these tools
will likely result in more efficient and cost-effective regulation than
would case-by-case permitting.
X. What implementation issues are related to this proposal?
In this action, EPA is proposing certain steps to ensure that
smaller sources (meaning sources emitting GHGs at lower rates) will not
become subject to PSD or title V upon EPA's completion of a rulemaking
that regulates GHG emissions. Absent those steps, such a rule would
trigger PSD and title V for many of these smaller sources. This is
because both the CAA PSD provisions and the title V provisions are
self-effectuating, that is, they each apply by their terms to require
sources to undergo permitting requirements. In addition, federally
approved State law provisions implement both the CAA PSD provisions and
title V provisions. Those State law provisions consist of the various
SIPs and State operating permit programs, respectively. In order to
limit PSD and title V applicability to sources that emit at or above
the thresholds proposed in this action, and to ensure that these limits
apply at the time a rulemaking regulating GHG emissions is
promulgated--which will trigger PSD and title V applicability--EPA is
proposing to establish threshold levels on the basis that the
administrative necessity doctrine overlays the CAA PSD and title V
requirements, so that it
[[Page 55341]]
is the proposed threshold levels, and not the statutory threshold
levels, that apply to sources of GHG emissions. Moreover, EPA is
proposing a process, consisting of several components, for conforming
the EPA-approved SIPs and title V programs to reflect those threshold
levels. This section of the preamble provides a detailed description of
this process, first for the SIP PSD provisions, and then for the title
V State operating permit program provisions.
A. CAA Provisions Concerning SIP Requirements for PSD Programs, State
Submittal Requirements, and EPA Action
Before describing EPA's proposed action for PSD SIP implementation,
it is useful to review the relevant background concerning the CAA
requirements for what SIPs must include, the process for State
submittals of SIPs, and requirements for EPA action on SIPs and SIP
revisions.
1. SIP Requirements for State PSD Programs and Adequate Resources
CAA section 110(a)(1) requires that States adopt and submit to EPA
for approval SIPs that implement the national ambient air quality
standards. CAA section 110(a)(2) contains a detailed list of
requirements that all SIPs must include to be approvable by EPA. Of
particular relevance for this action, subparagraph (J) of section
110(a)(2) of the CAA imposes the requirement that the SIP must ``meet
the applicable requirements of * * * part C * * * (relating to
prevention of significant deterioration of air quality * * *).'' Under
this provision, States must submit SIPs or SIP revisions that meet the
federally mandated requirements for PSD programs.
In addition, and also of particular relevance for this action,
subparagraph (E)(i) of section 110(a)(2) of the CAA provides that SIPs
must ``provide * * * necessary assurances that the State * * * will
have adequate personnel * * * [and] funding * * * to carry out such
implementation plan * * *.'' As applicable to PSD programs, this
provision means that EPA may approve the SIP PSD provisions only if EPA
is satisfied that the State will have adequate personnel and funding to
administer the PSD program, including conducting the appropriate
analyses for new and existing sources, issuing the permits, conducting
enforcement, and taking other necessary administrative action.
2. SIP Requirements for State Submittals, EPA Action, and FIPs
As noted above, under CAA section 110(a)(1)-(2), States must submit
for EPA approval SIPs that meet the requirements of section 110(a). If
a State does not submit a SIP or SIP revision as required, EPA is
authorized to make a finding that the State has failed to make a
required SIP submittal, under CAA section 179(a), and if EPA makes such
a finding, then, under CAA section 110(a)(2)(C), ``[t]he Administrator
shall promulgate a Federal implementation plan [(FIP)] at any time
within 2 years after'' the date of the finding, unless the State
corrects the deficiency, and the Administrator approves the plan or
plan revision.
After a SIP or SIP revision has been submitted, EPA is authorized
to act on it under CAA section 110(k)(3)-(4). Those provisions
authorize a full approval or, if the SIP or SIP revision meets some but
not all of the applicable requirements, a conditional approval, a
partial approval and disapproval, or a full disapproval. If EPA
disapproves a SIP or SIP revision, then EPA must promulgate a FIP at
any time within 2 years after the disapproval, unless the State
corrects the deficiency within that period of time by submitting an
approvable SIP revision.\34\
---------------------------------------------------------------------------
\34\ States are subject to sanctions for failure to submit, or
for EPA disapproval of, SIPs for nonattainment areas, under CAA
section 179. These sanctions provisions are not relevant for this
proposal because they do not apply to PSD SIPs.
---------------------------------------------------------------------------
Once EPA has approved a SIP, if EPA determines that its action in
doing so was in error, then, under CAA section 110(k)(6), EPA may
conduct a rulemaking to correct the error without requiring any further
action, such as submission of a request or a SIP revision, from the
State. Specifically, section 110(k)(6) provides:
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.
EPA also has authority to revise its previous action on a SIP
through EPA's inherent authority, under CAA section 301(a), to
reconsider prior rulemaking actions, as well as under Administrative
Procedure Act (APA) section 553(e), which requires EPA to give
interested persons ``the right to petition for the issuance, amendment,
or repeal of a rule.''
In addition, CAA section 110(k)(5) gives EPA authority to issue
what is commonly called a ``SIP Call'' when EPA determines that the SIP
is inadequate to meet CAA requirements. The SIP Call notifies a State
of the inadequacies in its current SIP and requires that the State
submit a revised SIP for EPA approval. Specifically, section 110(k)(5)
provides:
Whenever the Administrator finds that the applicable
implementation plan for any area is substantially inadequate to
[meet certain section 110 requirements] or to otherwise 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.
B. What PSD-specific implementation considerations are there?
Three different requirements of the CAA PSD provisions and the PSD
SIPs are at issue for this action. The SIPs vary in certain ways with
respect to these requirements, so that EPA must take different actions
for different SIPs.
These three requirements concern the threshold level for
applicability, the significance level, and the pollutants subject to
PSD. The first two--threshold and significance levels--may be treated
similarly and are discussed immediately below. The third is discussed
after that.
1. Requirements for Thresholds and Significance Levels in PSD
Provisions and PSD SIPs
a. EPA's proposed action: Revision of Federal regulations and
limitation of approval of SIPs.
As discussed elsewhere in this action, the CAA PSD provisions apply
to new sources at or above 100/250-tpy thresholds. CAA sections 165(a),
169(1). These requirements are included in EPA regulations in 40 CFR
52.21, which indicate what States should include in their SIPs. The CAA
PSD provisions apply to existing sources that modify when those
modifications increase emissions by any amount, CAA section 165(a),
169(2)(C), 111(a)(4), unless EPA promulgates higher levels--which we
term ``significance levels''--based on reasons of de minimis emissions
or administrative necessity. Alabama Power v. Costle, 636 F.2d 323
(D.C. Cir. 1980). This requirement is included in EPA regulations in 40
CFR 52.21. Until EPA acts to establish a significance level for GHG
emissions, the level in effect remains at zero for any newly regulated
pollutants.
[[Page 55342]]
Most jurisdictions are covered by EPA-approved PSD SIPs. Based on a
review of these EPA-approved PSD SIPs, virtually all of them establish
the PSD permitting threshold at the 100/250-tpy level, although a few
States have adopted lower permitting threshold levels. In addition,
virtually all EPA-approved SIPs establish the significance level for
any new pollutants that it covers--including GHG emissions, if
covered--at zero. Only a few EPA approved SIPs take a slightly
different approach by adopting significance levels at values other than
zero and up to the permitting thresholds. Some jurisdictions are not
covered by EPA-approved SIPs, and instead are covered by EPA
regulations at 40 CFR 52.21 that EPA implements (in which case, the EPA
regulations act as a FIP) or that the State implements through
authority delegated to it by EPA. For these States, the PSD threshold
level is 100/250 tpy and the significance level for new pollutants,
including GHG emissions, is, in effect, zero.
As discussed elsewhere, this action proposes to establish the PSD
thresholds for GHG emissions at 25,000 tpy CO2e, and
proposes to establish the PSD significance levels at [10,000-25,000]
tpy CO2e. EPA plans the following process to revise its
regulations and to conform the EPA-approved SIPs to reflect these
levels.
First, with respect to EPA regulations, EPA proposes to revise its
regulations to establish the permitting threshold at 25,000 tpy
CO2e, at 40 CFR 52.21, and to establish the significance
level at [10,000 to 25,000] tpy CO2e, at 40 CFR 52.21, based
on the administrative necessity doctrine discussed in section VI.C of
this preamble.
Second, with respect to the EPA-approved SIPs, although EPA
previously fully approved the permitting threshold level provisions and
the significance level provisions in those SIPs, EPA proposes to limit
its approval of those provisions in part. Specifically, EPA proposes to
limit its approval of (i) the permitting threshold level provisions to
the extent those provisions require permits for sources whose GHG
emissions equal or exceed the 100/250-tpy CO2e levels but
are less than 25,000 tpy CO2e for PSD thresholds; and (ii)
of the significance level provisions to the extent those provisions
apply to GHG emissions less than [10,000 to 25,000] tpy
CO2e. As discussed below, EPA's authority for these
limitations of approval is based on its authority under CAA section
301(a), which incorporates the inherent authority of an agency to
reconsider its actions, as well as under APA section 553. Even so, EPA
is also proposing, in the alternative, to limit its approval through
the error correction provisions of CAA section 110(k)(6).
EPA does not propose to take any further action on the permitting
threshold or significance level provisions for which EPA is limiting
its approval; that is, EPA is not proposing to disapprove those
provisions. Thus, the limitation of approval for those provisions does
not trigger an obligation on the part of the State to revise and
resubmit for approval the affected PSD SIP provisions and does not
trigger a FIP obligation.
The permitting threshold PSD SIP provisions that apply to sources
with GHG emissions at 25,000 tpy CO2e or higher, and the
significance level provisions that apply to sources with GHG emissions
at [10,000 to 25,000] tpy CO2e or higher, remain fully
approved.
As a drafting matter, EPA proposes to accomplish the limitations of
approval by adding to the record of its action on each SIP, as found in
the subparts to 40 CFR 51.21, the boilerplate statements that (i) EPA
limits its approval of the PSD permitting threshold provisions to the
extent those provisions require permits for sources of GHG emissions
that equal or exceed 100 tpy CO2e for sources in the 28
categories identified in CAA section 169(1), and 250 tpy
CO2e for all other sources, but that are less than 25,000
tpy CO2e; and (ii) EPA limits its approval of the PSD
significance level provisions to the extent those provisions treat as
significant GHG emissions increases that are less than [10,000 to
25,000] tpy CO2e.
b. Authority for limitation of approval.
EPA is limiting its approval through its authority under CAA
section 301(a) ``to prescribe such regulations as are necessary to
carry out [EPA's] functions'' under the CAA. This provision confers
general regulatory authority upon the Administrator, and incorporates
the Agency's inherent authority to reconsider prior rulemaking actions.
Additional authority for EPA to limit its approval is found in APA
section 553(e), which requires EPA to give interested persons ``the
right to petition for the issuance, amendment, or repeal of a rule.''
An administrative agency has the inherent authority to reconsider
its decisions, unless Congress specifically proscribes the agency's
discretion to do so. The D.C. Circuit recently affirmed this authority
in New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008), where it explained
that an agency normally can change its position and reverse a prior
decision but that in the case before it, Congress limited EPA's ability
to remove sources from the list of HAP source categories, once listed,
by requiring EPA to follow the specific delisting process at CAA
section 112(c)(9). See, e.g., Gun South, Inc. v. Brady, 877 F.2d 858,
862 (11th Cir. 1989) (holding that agencies have implied authority to
reconsider and rectify errors even though the applicable statute and
regulations do not provide expressly for such reconsideration);
Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir. 1980)
(``Administrative agencies have an inherent authority to reconsider
their own decisions, since the power to decide in the first instance
carries with it the power to reconsider''). CAA section 307(b)(1), a
judicial review provision that applies to all SIP actions, provides
some confirmation because it expressly contemplates the ``filing of a
petition of reconsideration by the Administrator of any otherwise final
rule or action.''
EPA recently applied this approach in connection with California
conformity SIPs. EPA had approved the SIPs based on a mobile source
model that was current at the time of EPA's approval. EPA proceeded to
update the mobile source model, but under the previous SIP approvals,
conformity decisions would continue to be made on the basis of those
previous SIP approvals, and would not take into account the updates to
the mobile source model. To rectify this problem, EPA conducted a
rulemaking that revised the previous SIP approvals so that they were
limited to the period before States submitted, and EPA found adequate,
the mobile source budgets in new SIPs based upon the update of the
mobile source model.
Similarly, in this action, EPA is proposing to limit its previous
approval to, in effect, a portion of the State PSD program, which is
the permitting requirements that apply to sources of GHG emissions at
or above 25,000 tpy CO2e (for permitting thresholds) and
[10,000 to 25,000] tpy CO2e (for significance levels),
respectively. The reason is that in light of the requirement under CAA
section 110(a)(2)(E) that SIPs provide necessary assurances of adequate
personnel and funding, the previous approvals of the PSD programs were
overly broad. Specifically, EPA approved PSD programs that applied to
all sources of regulated NSR pollutants above the 100/250-tpy statutory
levels. At the time of the EPA approvals, the sources emitting the
pollutants covered by the PSD programs, so approved, may have been in
sufficiently limited numbers so that State resources were adequate to
fully administer the PSD
[[Page 55343]]
program. However, the breadth of the applicability requirements that
EPA approved meant that if new pollutants were regulated in the future,
and if those new pollutants were emitted at the levels of 100/250 tpy
or higher by large numbers of sources, then the States' PSD programs
would become much larger and State resources accordingly will not be
adequate to administer the program. The SIP failed to provide necessary
assurances that the State would have sufficient personnel and funding
to cover this possible expansion of the PSD program. In fact, those
events are unfolding now: EPA is in the process of regulating GHG
emissions and thereby triggering PSD applicability for GHG sources,
and, at the applicability levels in the SIPs, State PSD programs will
become too large for States to administer with their current levels of
personnel and funding. For these reasons, EPA is limiting its previous
approvals, as described above.
c. Proposed alternative action: Error correction.
EPA is also proposing in the alternative to revise its approval of
the SIP threshold and significance level provisions through a CAA
section 110(k)(6) error correction. As noted above, CAA section
110(k)(6) authorizes EPA to correct its actions concerning SIPs and
certain other actions through a simplified procedure. For the reasons
described immediately above, EPA believes that the SIPs did not provide
the necessary assurances, as required under CAA section 110(a)(2)(E),
that the permitting authorities would have personnel and funding
adequate to implement the extensive SIP PSD programs that could result
from the broadly applicable PSD threshold provisions and significance
level provisions as approved. Therefore, under this alternative
proposal, EPA erred in approving those provisions. Rather, EPA should
have approved those provisions only in part, and not taken action on
the rest of the provisions.
As a result, EPA proposes to correct those errors, under the
authority of CAA section 110(k)(6), by limiting its approval of the PSD
threshold provisions to the extent they apply PSD requirements to
sources of GHG emissions between 100/250 tpy CO2e and 25,000
tpy CO2e, and the PSD significance level provisions to the
extent they apply to sources that emit GHGs at a rate below [10,000 to
25,000] tpy CO2e. In accordance with CAA section 110(k)(6),
EPA is proposing to conduct its limitation of approval through notice-
and-comment rulemaking under APA section 553, which is ``the same
manner as [EPA conducted] the approval,'' and EPA is not requiring any
further submission from the State.
d. State response.
For purposes of the federally approved SIP, this proposed action
does not require States to submit any SIP revision. That is, if EPA
finalizes this proposal, each federally approved PSD program will have
a PSD threshold level for GHG emissions of 25,000 tpy CO2e
and a significance levels for GHG emissions of [10,000 to 25,000] tpy
CO2e; and although each State PSD program--as established by
the State law provisions that comprise the SIP--will have a lower
threshold and significance level, those lower levels will not be
federally approved and therefore not federally enforceable. To
reiterate, EPA is not proposing to disapprove those provisions; rather,
EPA will take no further action with respect to them. As a result, no
further action by the State, including no SIP revision, is necessary
for Federal purposes.
Even so, it should be noted that the lower thresholds remain on the
books under State law, and sources therefore remain subject to them as
a matter of State law. As a result, States may wish to consider
revising those State law provisions. In addition, the fact that these
provisions remain on the books under State law may create some
confusion as to whether they are part of the federally approved SIP
(again, with this proposed action, they would not be), and for this
purpose too of avoiding this confusion, States may wish to consider
revising those State law provisions.
On the other hand, if a State wants to implement PSD permitting
requirements at a threshold level lower than 25,000 tpy
CO2e, or implement a significance level lower than [10,000
to 25,000] tpy CO2e, for GHG emitters, the State may submit
a SIP revision that identifies the lower thresholds and provides the
necessary assurances, under CAA section 110(a)(2)(E), that it has
adequate personnel and funding to permit at this level. If the SIP
revision meets the CAA section 110(a)(2)(E) requirement, EPA will
proceed to approve it. Permitting for this State would then cover such
smaller sources. For reasons described elsewhere in this notice, the
EPA has determined based on its national analysis that, absent
additional streamlining measures, the PSD program will initially be
impossible to implement at such lower levels. A State seeking to adopt
lower levels should therefore be prepared to describe in its submittal
the administrative burden that will be added at the proposed lower
levels, and the measures it will take to make the program implementable
at those levels.
It should be noted that EPA considered, but is not proposing or
soliciting comment on, issuing a SIP call under CAA section 110(k)(5)
to require States to either demonstrate that they have adequate
personnel and funding to administer their PSD programs at the 100/250-
tpy CO2e threshold level for GHG emitters, or to submit a
SIP revision that raises the threshold to 25,000 tpy CO2e or
some other level commensurate with their personnel and funding. EPA
decided against this approach for several reasons. First, a SIP call
under section 110(k)(5) takes significantly more time than actions
taken under EPA's other authorities. For a SIP call, EPA first
undertakes a notice-and-comment process in order to make the finding
that a SIP is inadequate and to set a schedule for a new SIP submission
by a State (which can be up to 18 months after EPA's determination).
Then, EPA must provide notice and opportunity for comment regarding
whether or not the Agency should approve the SIP revision submitted by
a State in response to the SIP call. By contrast, the reconsideration
of a SIP approval can be undertaken in much less time. Reconsideration
of a SIP approval may lead to a more speedy and efficient resolution in
a situation (such as the present) where there is no need for a further
SIP submission to be developed and submitted to EPA by the State.
2. PSD SIP Provisions Identifying the Pollutants
A handful of EPA-approved SIPs fail to include provisions that
would subject GHG emissions to their PSD requirements when EPA
promulgates regulations that regulate GHGs and thereby trigger the
applicability of PSD. For these SIPs, EPA intends to take separate
regulatory action, as discussed in this section of this preamble.
a. Regulatory background.
By way of background, in 1978, after Congress enacted the PSD
program in the 1977 CAA Amendments, EPA promulgated a rulemaking to
implement the program. 43 FR 26380 (June 19, 1978). This rulemaking
required that the PSD program apply to ``each pollutant subject to
regulation'' under the CAA. Id. at 26403, 26406 (promulgating 40 CFR
51.21(b)(1)(i)).\35\ In 2002, EPA
[[Page 55344]]
promulgated a rulemaking that revised parts of the PSD and
nonattainment NSR programs, which is generally known as the ``NSR
Reform'' rulemaking, and there, EPA revised this terminology so that
PSD requirements apply to ``regulated NSR pollutants.'' 67 FR 80186
(Dec. 31, 2002); see 40 CFR 52.21(b)(50).
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\35\ After challenges by industry and environmental
organizations, parts of this rulemaking were remanded by the D.C.
Circuit in Alabama Power v. Costle, 636 F.2d 323 (D.C. Cir. 1980),
and EPA promulgated revised requirements in 1980. 45 FR 52676
(August 7, 1980). The requirement that the PSD program apply to
``each pollutant subject to regulation'' under the Act was not at
issue in Alabama Power and was not revised in the rule revisions
that followed that decision.
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After the 1978 rulemaking, most States submitted SIPs with
provisions that incorporated the requirement to apply PSD requirements
to ``each pollutant subject to regulation,'' or used comparable
terminology, and EPA approved those provisions. Following the 2002 NSR
Reform rule, many, although not all, of these States submitted SIPs
that EPA has approved and that have replaced that terminology with the
requirement that PSD requirements apply to ``NSR regulated
pollutants.''
However, a few SIPs do not have provisions that apply the PSD
requirements to ``regulated NSR pollutants'' or ``pollutants subject to
regulation'' under the CAA, or use comparable terminology. Rather,
these SIPs specifically list the pollutants to which the PSD programs
apply, and do not include GHGs.
b. EPA's plan of separate regulatory action.
It is EPA's understanding that each of the SIPs that cover either
``NSR regulated pollutants'' or ``pollutants subject to regulation''
under the CAA, or that use comparable terminology, will apply the PSD
requirements to sources that emit GHGs, at the appropriate threshold
levels, when EPA promulgates rules regulating GHGs and thereby
triggering PSD requirements. This is because these SIP provisions
employ broad enough terminology to encompass newly regulated
pollutants, such as GHGs.\36\ As a result, for these SIPs, no further
action by EPA in this proposal is necessary.\37\
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\36\ It should be noted that if any State with these SIP
provisions interprets their provisions to cover only pollutants
regulated (or subject to regulation) at the time of SIP submission
or approval, so that the provisions would not cover GHG emissions,
then the State should so indicate during the comment period. EPA
will take steps to resolve the proper interpretation of the
provision. EPA proposes in this action that if EPA agrees that the
SIP provision cannot be interpreted to cover sources of GHG
emissions, then EPA will treat the State in the same manner as
States that specifically list pollutants as subject to PSD
requirements and do not include GHGs, as discussed below.
\37\ It should be noted that in this action, EPA is not
addressing in any way any other issue that may arise concerning any
of these States that do not have approved PSD programs incorporating
all of the requirements of the NSR Reform rule.
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However, the story is different for the few SIPs that do not have
provisions that apply the PSD requirements to ``regulated NSR
pollutants'' or ``pollutants subject to regulation'' under the CAA, and
that instead specifically list the pollutants to which the PSD programs
apply, and do not include GHGs. Although EPA approved them, these SIPs
were, and remain, deficient because by subjecting to the PSD
requirements only the pollutants specifically listed, they fail to
reflect the EPA's longstanding requirements that PSD requirements apply
to all pollutants subject to regulation under the CAA, which
necessarily includes any newly regulated pollutants beyond those
specifically listed.
Importantly, for present purposes, these SIPs do not require that
GHG emitters obtain PSD permits. However, CAA section 165(a), by its
terms, prohibits a source that is subject to PSD from constructing or
modifying without a permit. As noted elsewhere, as a result of the
proposed light-duty vehicle rule, expected to be promulgated at the end
of March 2010, sources of GHG emissions in those States will be subject
to the requirement of CAA section 165(a) to obtain a preconstruction
PSD permit.
EPA recognizes the problems that arise from this situation.
Accordingly, EPA intends a separate regulatory action in the very near
future that will identify the SIPs in question and address them. EPA
expects this regulatory action to be completed and to take effect by
the time EPA promulgates the light-duty vehicle rule at the end of
March 2010.
C. What title V-specific implementation issues are there?
Some of the title V-specific implementation issues parallel the PSD
SIP implementation issues. Thus, the process EPA is proposing,
described below, to conform the EPA-approved title V programs to
reflect the title V applicability threshold level for GHG emissions of
25,000 tpy CO2e parallels in certain respects the process
described above for conforming the EPA-approved SIP PSD programs.
1. CAA Provisions Concerning Title V Requirements for State Programs,
State Submittal Requirements, and EPA Action
Before describing EPA's proposed action for title V implementation,
it is useful to review the relevant background concerning the CAA
requirements for title V State operating permit programs, State
submittals of those programs, and EPA action on State title V programs.
a. CAA requirements under title V for State permitting programs.
CAA section 502(d)(1) requires that each State adopt and submit to
EPA for approval an operating permit program under State or local law
that meets the requirements of title V. CAA section 502(b) contains a
detailed list of requirements that all State permit programs must
include to be approvable by EPA. Of particular relevance for this
action, paragraph (4) of section 502(b) provides that the permit
program must include ``[r]equirements for adequate personnel and
funding to administer the program.'' This provision means that EPA may
approve the State permit program only if EPA is satisfied that the
State will have adequate personnel and funding to administer the
program, including issuing the permits, conducting enforcement, and
taking other necessary administrative action.
b. State permit program submittal requirements and Federal plans.
As noted above, under CAA section 502(d), States must submit for
EPA approval State permit programs that meet the requirements of CAA
section 502(b). If a State does not submit a permit program as
required, or if EPA disapproves a program submitted, in whole or in
part, then the Administrator ``shall, 2 years after the date required
for submission of such a program * * *, promulgate, administer, and
enforce a [title V] program * * * for that State,'' under CAA section
502(d)(3).\38\
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\38\ In addition, if EPA disapproves a title V program due to
failures by the State concerning an area in the State and air
pollutants for which that area is in nonattainment, then mandatory
sanctions apply, under CAA section 502(d)(2)(B)-(C). Sanctions
regarding offsets would not be relevant for purposes of this action
because GHGs are not criteria air pollutants under CAA section
108(a) and no areas are designated nonattainment for them.
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c. EPA action on, and revision of action for, State permit
programs.
After a State permit program has been submitted, EPA must approve
or disapprove it in whole or in part. CAA section 502(d)(1). Those
provisions authorize EPA to approve the program to the extent that it
meets the requirements of title V.
[[Page 55345]]
Once EPA has approved a permit program, EPA retains the authority
to revise its action through its inherent authority to reconsider prior
rulemaking actions, as well as under APA section 553(e), which requires
EPA to give interested persons ``the right to petition for the
issuance, amendment, or repeal of a rule.'' \39\
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\39\ Title V does not include a provision for an error
correction that is comparable to CAA section 110(k)(6), which
concerns SIPs.
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In addition, CAA section 502(i)(1) gives EPA authority to issue
what is commonly called a ``notice of deficiency'' (NOD) when EPA
determines that the permitting authority ``is not adequately
administering and enforcing a program, or portion thereof.'' The NOD
notifies a State of the inadequacies in its current permit program and
requires that EPA promulgate, administer, and enforce a permit program
under title V within 2 years after issuing the notice unless the State
has corrected the deficiency, under section 502(i)(4). See also CAA
sections 502(i)(2)-(3) regarding sanctions.
2. What title V-specific implementation considerations are there?
Two different requirements of the CAA title V permit programs are
at issue for this action. The permit programs are similar with respect
to these requirements, so that EPA's action is the same for each of the
permit programs. These two requirements concern the threshold level for
applicability and the pollutants subject to title V permitting
requirements.
a. Requirements for threshold level in title V Federal regulatory
provisions and title V State plans.
(i) EPA's proposed action: Revision of Federal regulations and
limitation of approval of SIPs.
As discussed elsewhere in this action, the CAA title V
requirements, as interpreted by EPA, generally apply to existing
sources that emit 100 tpy or more of any air pollutant.\40\ CAA
sections 502(a), 501(2)(B). These requirements are included in EPA
regulations in 40 CFR 70.3.
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\40\ Title V requirements also apply to sources defined as major
sources under CAA section 112 on the basis of their emissions of
HAP, and these sources may be covered by title V even though they
emit less than the 100-tpy threshold that generally applies.
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Most jurisdictions are covered by EPA-approved State title V permit
programs. It appears that each EPA-approved title V permit program
establishes the permitting threshold at, in general, 100 tpy. Some
jurisdictions are not covered by EPA-approved State programs, and
instead are covered by regulations at 40 CFR 71 that EPA implements.
For these jurisdictions, the PSD threshold level is 100 tpy.
As discussed elsewhere, in this action, EPA proposes to establish
the title V permitting threshold for GHG emissions at 25,000 tpy
CO2e. EPA plans the following process to revise its
regulations and to conform the EPA-approved State title V programs to
reflect these levels. This action parallels EPA's action to revise its
PSD regulations and conform the EPA-approved State PSD programs to the
revised PSD regulations, discussed above. First, with respect to its
EPA regulations, EPA proposes to revise its regulations to establish
the permitting threshold for GHGs at 25,000 tpy CO2e, at 40
CFR 70.2. Second, with respect to the EPA-approved State permitting
programs, although EPA previously fully approved the permitting
threshold level provisions in those programs, EPA proposes to limit its
approval of the permitting threshold level provisions to the extent
those provisions require permits for sources whose emissions of GHGs
equal or exceed 100 tpy CO2e but are less than 25,000 tpy
CO2e. EPA's authority for this limitation of approval is
based on CAA section 301(a), which incorporates the inherent authority
of an agency to reconsider its actions, as well as on APA section 553.
EPA does not propose to take any further action on the permitting
threshold provisions for which EPA is limiting its approval; that is,
EPA is not proposing to disapprove those provisions. Thus, the
limitation of approval for those provisions does not trigger an
obligation on the part of the State to revise and resubmit for approval
the affected permitting program provisions and does not trigger any
Federal plan obligation.
The State permitting threshold provisions that apply to sources
with GHG emissions at 25,000 tpy CO2e or higher remain fully
approved.
As a drafting matter, EPA proposes to accomplish the limitations of
approval by adding to the record of its action on each State permit
program the boilerplate statement that EPA limits its approval of the
State permitting threshold provisions to the extent those provisions
require permits for sources of GHG emissions that equal or exceed 100
tpy CO2e but that are less than 25,000 tpy CO2e.
(ii) Authority for limitation of approval.
As with its action concerning the PSD program, discussed above, EPA
is limiting its approval under CAA section 301(a), which reflects its
inherent authority to reconsider prior rulemaking actions, as well as
under APA section 553(e). This authority is described in detail above
in connection with EPA's proposed parallel action concerning PSD SIP
provisions.
(iii) State response.
For purposes of the federally approved State permit program, this
proposed action does not require States to submit any revision or take
any further action. That is, if EPA finalizes this proposal, each
federally approved title V program will have an applicability threshold
level of 25,000 tpy CO2e. Although the State permitting
program--as established by the State law provisions--may have a lower
threshold, that lower level will not be federally approved and will
therefore not be federally enforceable. To reiterate, EPA is not
proposing to disapprove those provisions; rather, EPA will take no
further action with respect to them. As a result, no further action by
the State, including no program revision, is necessary for Federal
purposes.
Even so, the lower thresholds remain on the books under State law,
and sources therefore remain subject to them as a matter of State law.
As a result, States may wish to consider revising those state law
provisions. In addition, the fact that these provisions remain on the
books under State law may create some confusion as to whether they are
part of the federally approved title V program (again, with this
proposed action, they would not be), and for this purpose too of
avoiding this confusion, States may wish to consider revising those
state law provisions.
On the other hand, if a state wants to implement its operating
permit requirements at a threshold level lower than 25,000 tpy
CO2e for GHG emitters, the state may submit an operating
permit program revision that identifies the lower thresholds and
provides the necessary assurances, under CAA section 502(b)(4), that it
has adequate personnel and funding. If the program revision meets the
CAA section 502(b)(4) requirement, EPA will proceed to approve it.
It should be noted that EPA considered, but is not proposing or
soliciting comment on, issuing a NOD under CAA section 502(i)(1) to
require States to either demonstrate that they have adequate personnel
and funding to administer their operating permit programs at the 100-
tpy CO2e threshold level for GHG emitters, or to submit a
permit program revision that raises the threshold to 25,000 tpy
CO2e or some other level commensurate with state personnel
and funding. EPA decided
[[Page 55346]]
against this approach for several reasons. First, a NOD under section
502(i)(1) takes significantly more time than actions taken under EPA's
other authorities. The first step in this process is publication of a
NOD in the Federal Register that sets forth EPA's findings as to the
deficiencies in the state program. This notice requires the state to
take significant action within 90 days, and identifies several actions,
such as program withdrawal and implementation of a Federal permitting
program, that EPA may take if significant action is not taken by the
state. If the state has not corrected the deficiency within 18 months
after the finding described above, EPA will promulgate, administer and
enforce a Federal program within 2 years of the finding. In contrast,
the reconsideration of a permit program approval can be undertaken in
much less time.
Reconsideration of a permit program approval may lead to a more
speedy and efficient resolution in a situation (such as the present)
where there is no need for a further permit program submission to be
developed and submitted to EPA by the state.
b. Requirement that title V permit programs apply to any air
pollutant.
It appears that most title V-approved state permit programs apply
to 100-tpy-or-more sources of any pollutant. As discussed elsewhere,
EPA interprets these provisions to cover only pollutants that are
actually regulated under other CAA provisions. These title V programs
will include sources of GHG emissions when EPA promulgates regulations
for GHG emissions, which EPA expects at the end of March 2010. For
those title V programs, no further action concerning these provisions
is needed.
However, EPA believes that some title V programs may apply to 100-
tpy-or-more sources of only pollutants specifically identified in the
program provisions and that these title V programs do not include a
provision that automatically updates title V applicability to include
any new pollutant for which EPA promulgates controls. Thus, these title
V programs would not include GHG emitters. These programs are similar,
for title V purposes, to the SIPs described above that specifically
list pollutants subject to PSD that do not include a provision that
automatically updates PSD applicability to include any new pollutant
for which EPA promulgates controls. Thus, these title V programs carry
the same deficiency that the SIPs do. As with the SIPs, EPA intends to
undertake separate regulatory action in the near future to address
these title V programs, which EPA intends to be completed and take
effect by the end of March 2010, when EPA promulgates the light-duty
vehicle rule that triggers title V applicability for sources of GHG
emissions.
D. GHGs and Title V Permit Fees
Under title V, section 502(b)(3) of the Act, permitting authorities
(including State and local agencies, tribes, and EPA) are required to
collect fees ``sufficient to cover all reasonable (direct and indirect)
costs required to develop and administer the permit program
requirements.'' The final part 70 rule grants States wide discretion in
collecting fees from individual sources through establishment of fee
schedules in their permit programs, provided the total fees collected
from all sources are sufficient to cover the title V costs. See Sec.
70.9(a), and Sec. 70.9(b)(1) and (b)(3). The initial permit program
submittal to EPA is required to include a demonstration that the fee
schedule will be sufficient to cover the program costs and an estimate
of the program cost during the early years of implementation. See Sec.
70.4(b)(7) and (8). Also, at any time, EPA may require States to
provide a detailed accounting of fee schedule adequacy, including when
serious questions are raised about adequacy. See Sec. 70.9(b)(5) and
Sec. 70.9(c). Thus, title V and part 70 place primary responsibility
on the permitting authorities to raise adequate fees and on EPA to
perform oversight of this responsibility.
The activities related to regulation of GHGs that would increase
permitting authority workloads can be grouped into the following two
categories: (1) Changing existing permits to add any necessary
provisions to address GHGs, and (2) issuing new permits to sources
newly subject to permitting solely because their regulated GHGs exceed
the major source threshold.
Thus, we need to consider the impact of this proposal and any
future regulation of GHGs on the fee requirements of the permit
programs, and if any revisions are needed to parts 70 and 71 in
response to ensure collection of adequate fees to fund the permit
programs.
1. How are the fee rates set in the permit programs?
The part 70 rule provided a shortcut to ease the level of detail
otherwise required in States' fee adequacy demonstrations by providing
a ``presumptive minimum fee,'' which was specified in section
502(b)(3)(B) of the Act. The final part 70 rule provides a rebuttable
presumption that the fees charged by a state are sufficient to cover
program costs if they collect an amount equal to or greater than the
presumptive minimum fee multiplied by the actual tons of ``regulated
pollutants (for presumptive fee calculation),'' as defined in Sec.
70.2. The part 70 presumptive fee was initially set at $25/ton. This
amount is adjusted for inflation, annually. See Sec. 70.9(b)(2). The
current presumptive minimum fee, effective through September 2009, is
$43.75. EPA calculates the inflation-adjusted part 70 presumptive
minimum fee in October of each year and places a memorandum announcing
the fee on a Web site it maintains for this purpose. See http://www.epa.gov/air/oaqps/permits/fees.html. Also, EPA notes that it
believes there are currently a minority of States that base their fees
on the presumptive minimum, perhaps at most 17 out of 112 State and
local part 70 permits programs.
Since the use of the presumptive minimum fee is not mandatory for
States, States were free to set either lower or higher fees rates,
based on a more detailed fee adequacy demonstration. See Sec.
70.9(b)(5). States were not required to set emissions-based fees though
most did in combination with other approaches. Emissions-based fees on
state fee schedules range from less than $10 per ton in a rural State
to over $100 ton in a large urban area. Examples of other fee schedule
approaches include processing fees, such as fees for applications,
renewals and modifications, charges for time and material, and fees
that vary depending on source category, equipment types, regulated air
pollutant, business size, and many other factors. See Sec. 71.9(b)(3).
The part 71 permit program, administered by EPA and delegate
agencies, charges a ``part 71 annual fee,'' for every actual ton of
``regulated air pollutant (for fee calculation),'' as defined in Sec.
71.2. Also see fee schedule at Sec. 71.9(c). The final rule for part
71 set this rate at $32/ton. Adjusted for inflation, the part 71 annual
fee through calendar year 2009 is $45.25 per ton. The final rule based
the $32/ton fee on a detailed fee demonstration performed by EPA,
placed in the docket prior to promulgation of the final rule, showing
slightly higher costs for EPA versus state implementation of a title V
program. The annual inflation adjustment is performed in October of
each year and is announced on the same Web site as the part 70
presumptive minimum.
2. Which pollutants are subject to permit fees?
The terms ``regulated pollutant (for presumptive fee calculation)''
under part 70 and ``regulated pollutant (for fee
[[Page 55347]]
calculation)'' under part 71 are defined essentially the same in both
programs. These terms are both currently defined to mean any
``regulated air pollutant'' except: (1) Carbon monoxide, (2) any
pollutant that is a regulated air pollutant solely because it is a
Class I or II substance subject to a standard promulgated or
established under title VI of the Act, or (3) any pollutant that is a
regulated air pollutant solely because it is subject to a standard or
regulation under section 112(r) of the Act. The part 70 fee pollutant
definition specifies which regulated air pollutants must be considered
in presumptive minimum analyses, while the part 71 fee pollutant
definition specifies which regulated air pollutants are the basis for
fees for part 71 sources. The term ``regulated air pollutant'' in parts
70 and 71 means the following:
(1) Nitrogen oxides or any volatile organic compounds;
(2) Any pollutant for which a NAAQS has been promulgated;
(3) Any pollutant that is subject to any standard promulgated under
section 111 of the Act;
(4) Any Class I or II substance subject to a standard promulgated
under or established by title VI of the Act; or
(5) Any pollutant subject to a standard promulgated under section
112 or other requirements established under section 112 of the Act,
including sections 112(g), (j), and (r) of the Act, including the
following: (i) Any pollutant subject to requirements under section
112(j) of the Act. If the Administrator fails to promulgate a standard
by the date established in section 112(e), any pollutant for which a
subject source would be major shall be considered regulated 18 months
after the section 112(e) date; and (ii) Any pollutant for which the
requirements of section 112(g)(2) of the Act have been met, but only
with respect to the individual source subject to the requirement.
Note that GHGs are not currently included in either definition for
fee purposes because they are not ``regulated air pollutants,'' but
GHGs may be covered in the future.
Also note that section 502(b)(3) of the Act, upon which these fee
regulations are based, does not specifically require fees for GHGs, and
it does not specifically require fees for every regulated air
pollutant, even those that may cause the source to be defined as a
major source; it just requires adequate fees to cover costs. Thus, we
believe the Act provides us with some discretion in how we treat GHGs
for permit fee purposes. This discretion also would potentially include
revising the part 70 and 71 rules to address workload associated with
GHGs.
3. Proposal for Fees in State Part 70 Programs
The permitting of GHGs has the potential to create overwhelming
resource burdens on State part 70 programs. These burdens would be
significantly reduced under this proposal, through raising the title V
major source thresholds for GHGs, which will reduce the number of
sources subject to permitting. Nonetheless, as noted above, there will
be some remaining additional activity associated with GHG permitting
that will likely require States to increase revenue to cover the
expected increase in level of activity. At this time, we believe that
the best approach to address this situation is for States to assess
their increased workload and determine whether their current fee
regulations need to be amended to cover any expected revenue shortfall.
If so, States have a wide variety of possible options regarding what
pollutants and sources to cover, and what fee structure to adopt.
The EPA is not proposing at this time to amend its regulations to
establish a presumptive fee approach that would involve specifically
charging fees for GHGs. We are also not proposing at this time to
calculate a new presumptive minimum fee under the existing presumptive
fee approach to take GHGs into account, or to mandate revisions to fee
regulations for GHGs in States that did not adopt the presumptive fee
approach. We believe that the best approach at this time is to allow
each State to determine how best to satisfy the fee adequacy
requirement under the existing process, for EPA to monitor the
situation, and be prepared to exercise oversight authority if
necessary.
Due to the large quantity of GHGs emitted relative to criteria
pollutants, for example at a combustion source where GHGs may be from
several hundred times to over one thousand times the emissions of other
combustion pollutants, EPA has decided not to propose to amend its
regulations to establish a presumptive fee approach that would treat
GHGs similarly to current fee pollutants. Such an approach would result
in greatly excessive revenues because agency workloads are not
necessarily proportional to emissions for sources and GHG emissions are
orders of magnitude larger than other emissions for many source
categories. Thus we have rejected that approach as an option.
Similarly, we considered and rejected proposing to require a different,
significantly reduced presumptive minimum fee for GHG [e.g., by
revising Sec. 70.9(b)(2)]. This is not required by the Act, provided
States can raise revenues in the aggregate that are adequate to cover
program costs. We also believe we would need better data to establish
the appropriate basis for the GHG presumptive minimum. We expect our
data will improve over time as EPA and permitting authorities gain
experience with GHG permitting programs, but at present there are large
uncertainties in our estimates of the additional GHG workload at the
25,000 ton CO2 level, the level of effort needed to
incorporate future regulations for GHGs into permits, and the
additional revenue that would come in from fees paid for emissions
other than GHG from newly covered sources under existing fee schedules.
Also, for similar reasons, we have decided not to issue NODs under
Sec. 70.10(b) for State failure to adequate implement and enforce
their part 70 programs on the basis of failure to date to revise their
fee schedules to cover any existing or anticipated workload for GHGs
(for example, the workload associated with planning for future
regulation, conducting emissions inventories of GHGs, and similar
activities directly or indirectly related to part 70 permitting).
Although we do not believe it is necessary to revise our part 70
regulations to implement the fee requirements for GHGs, EPA intends to
closely monitor State programs to ensure that incorporating GHGs into
permits do not result in fee shortfalls serious enough to imperil the
implementation and enforcement of the part 70 program. EPA has adequate
authority under Sec. 70.9(b)(5) to perform audits of State fees at any
time, at our own initiative or whenever any serious questions are
raised about fee adequacy, and we have done so in the past. During any
such audit, EPA would focus its review on the program support test of
Sec. 70.9(b)(1) in order to assure that fees are adequate to support
the program. There is also authority in Sec. 70.4(i)(3) for EPA or the
State to initiate a program revision when relevant Federal or State
regulations are modified or supplemented, such as when EPA takes a
future action to regulate GHGs or when EPA has reason to believe that a
State is not adequately administering its program, which could occur if
a fee audit uncovers a need to increase a State's fees. This provision
specifically authorizes EPA to request additional documents or
information, such as a revised fee demonstration. We also have
authority to take action for a State's
[[Page 55348]]
failure to adequately administer and enforce a part 70 permits program
under Sec. 70.10(b). This process includes the issuance of a NOD and
could result ultimately in withdrawal of the part 70 program and
imposition of a Federal part 71 program in its place, if appropriate
and timely part 70 program revisions are not made (e.g., NODs on
questions of fee adequacy: (1) 69 FR 10167, March 4, 2004, http://edocket.access.gpo.gov/2004/04-4822.htm; and (2) 71 FR 67061, November
20, 2006, http://www.epa.gov/EPA-AIR/2006/November/Day-20/a19555.htm).
There are other examples where EPA has performed oversight of fee
adequacy over State or local part 70 programs that did not ultimately
result in the issuance of an NOD (i.e., see a December 13, 2001, letter
from EPA Region 10 to a concerned citizen, http://www.epa.gov/region7/programs/artd/air/title5/t5memos/aktrust.pdf; and a September 23, 2002,
letter from EPA Region 3 to a concerned citizen, http://www.epa.gov/air/oaqps/permits/response/maryland.pdf.
For these reasons we are proposing a recommendation that each
State, local, or tribal part 70 program review its expected resource
needs for implementing GHGs and its fee schedule with the aim of
determining if its fee revenues will be adequate to cover the direct
and indirect costs of implementing its program once GHGs are brought
into the program. If they would not be adequate, States using the
presumptive fee approach should be proactive in raising fees on current
``regulated pollutants (for presumptive fee calculation)'' or
developing other alternative approaches to meet the shortfall. We may
officially require submittal of fee analyses for GHGs at any time in
the future, but we do not believe we need to do so at this time.
This approach is consistent with how we have treated past Federal
regulations that could have potentially affected title V program
resources and fees, including final rules that resulted in new
applicable requirements in permits and that changed the number of
sources required to get permits (e.g., we did not require new fee
demonstrations in response to promulgation of a large number of part 63
emissions standards, nor in response to part 63 standards that required
title V permits for minor sources). In those situations, we did not
alter the Federal fee regulations or require changes to the fee
regulations in State programs, but the requirement for adequate
revenues still applied.
4. GHGs and Part 71 Fees
Similar to the explanation for part 70 above, after GHGs become
regulated for CAA purposes, we note that increased burdens will likely
fall on part 71 permitting authorities (EPA and delegate agencies),
resulting in the need for EPA to review the part 71 fee schedule to
ensure there are adequate fees to cover program costs. We are also not
proposing at this time to establish a presumptive fee approach that
would treat GHGs similarly to current fee pollutants nor to adjust the
fee schedule of Sec. 71.9(c) with respect to these expected burdens
for similar reasons we explained above for part 70. EPA has not
determined that existing part 71 fee structure will be inadequate to
fund the part 71 program costs in the next few years with GHG
permitting included.
We will examine the increases in part 71 burden due to GHG-related
permitting activity and in fees collected from part 71 sources to
assess whether part 71 fees remain adequate. Section 71.9(c)(7)
requires EPA to revise the fee schedule by rule if it does not reflect
the costs of program administration, while Sec. 71.9(n)(2) requires
the Administrator to review the fees schedule every 2 years and to
revise it if necessary.
E. Implementation Assistance and Support
In addition to the development of permit streamlining techniques
during the threshold evaluation period to address administrative
capacity issues, EPA also plans to compile and make available technical
and background information on GHG emission factors, control
technologies, strategies and measurement and monitoring methodologies
for key GHG source categories. This information will be particularly
helpful to permitting authorities in making BACT determinations for GHG
for sources that trigger PSD during the phase-in period. We plan to
make the information available at such time as necessary to support
permitting agencies in their BACT determinations (e.g., on or before
EPA completes an action that triggers PSD for GHGs). In addition, we
will pursue using this information to develop presumptive BACT levels
for selected source categories.
We intend to focus our support effort on the largest emitting GHG
source categories, those that would likely exceed the temporary major
source GHG threshold adopted as part of this action. At this time, we
believe that power plants, petroleum refineries, pulp and paper mills,
iron and steel facilities and portland cement plants are some of the
source categories for which such information would initially prove most
useful to permitting agencies. A key objective of this support effort
will be to help permitting authorities find cost effective ways to
achieve GHG controls under the BACT requirement. In addition, the
information may be useful to permit applicants in preparing BACT
analyses as well as providing other stakeholders with an understanding
of how GHG emissions may be mitigated.
As an example, the information would include EPA's industrial
energy management resources for energy intensive industries available
through its ENERGY STAR program (see http://www.energystar.gov/index.cfm?c=in_focus.bus_industries_focus). We intend to work
closely with stakeholders in developing the support effort and
information. This will help assure that, to the extent possible, the
information developed supports consistency and certainty in BACT
determinations. In planning this effort, EPA seeks comment on the
following: (1) Given time and resource constraints, which specific
source categories or sectors, including emission units, should EPA
prioritize, (2) what specific information (e.g., emission factors,
control technologies, collateral impacts, cost information, etc.) and
what format would be most helpful to permitting agencies in carrying
out the provisions of the PSD and title V programs as they would apply
to GHGs, and (3) what other types of support or assistance can EPA
provide to initially help air pollution control agencies with the
permitting of GHGs?
XI. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is provided in the
docket for this action and the analysis is briefly summarized in
section IX of this preamble.
[[Page 55349]]
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
Instead, this proposed action would significantly reduce costs incurred
by sources and permitting authorities relative to the costs that would
be incurred if EPA did not revise the rule. Based on our GHG threshold
data analysis, we estimated that over 40,000 new and modified
facilities per year would be subject to PSD review based on applying a
GHG emissions threshold of 250 tpy using a CO2e metric. This
is compared to 280 PSD permits currently issued per year, which is an
increase of more than 140-fold. Similarly, for title V, we estimated
that over six million new sources would be affected at the 100-tpy
threshold for GHGs using the CO2e metric. By increasing the
volume of permits by over 400 times, the administrative burden would be
unmanageable without this rule. Despite this reduction of burden, the
OMB has previously approved the information collection requirements
contained in the existing regulations for PSD (see, e.g., 40 CFR 52.21)
and title V (see 40 CFR parts 70 and 71) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0003 and OMB control number 2060-0336 respectively.
The OMB control numbers for EPA's regulations in 40 CFR are listed in
40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the APA or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of this proposed action on
small entities, small entity is defined as: (1) A small business that
is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see 13 CFR 121.201); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; or (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
After considering the economic impacts of this proposed action on
small entities, I certify that this proposed action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analysis is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic
effect, on all of the small entities subject to the rule.
We believe that this proposed action will relieve the regulatory
burden associated with the major PSD and title V operating permits
programs for new or modified major sources that emit GHGs, including
small businesses. This is because the proposed action would raise major
source applicability thresholds for these programs for sources that
emit GHGs at rates below 25,000 tpy CO2e. As a result, the
program changes provided in the proposed rule are not expected to
result in any increases in expenditure by any small entity.
We have therefore concluded that this proposed rule would relieve
regulatory burden for a substantial number of small entities, and thus
I certify that it will not have a significant economic impact on a
substantial number of small entities. However, EPA recognizes that some
small entities continue to be concerned about the potential impacts of
the statutory imposition of PSD requirements that may occur given the
various EPA rulemakings currently under consideration concerning GHG
emissions. Accordingly, EPA will use the discretion afforded to it
under the RFA to consult with OMB and SBA, with input from outreach to
small entities, regarding the potential impacts of PSD regulatory
requirements that might occur as EPA considers regulations of GHGs. EPA
is not required to consult in this manner when it has certified that a
rule will not have a significant economic impact on a substantial
number of small entities, but we believe that engaging in such
consultation before finalization of this rule will help us to better
understand and address the potential PSD regulatory concerns of small
entities that might experience such impacts.
D. Unfunded Mandates Reform Act
This proposed action does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any 1
year. Although this proposed action would result in a small increase in
the burden imposed upon permitting authorities by requiring States to
revise their SIPs to incorporate the changes, the revisions would
ultimately reduce the PSD and title V program administrative burden
that would otherwise occur in the absence of this rulemaking. Thus,
this proposed action is not subject to the requirements of sections 202
or 205 of UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. EPA has determined
that this proposed action contains no regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments. However, in developing this proposed action, EPA consulted
with small governments pursuant to a plan established under section 203
of UMRA to address impacts of regulatory requirements in the rule that
might significantly or uniquely affect small governments. As stated in
sections XI.E and F of this preamble, EPA consulted with State, local,
and tribal officials early in the process of developing the proposed
regulation to permit them to have timely and meaningful input into its
development by publishing an ANPR (73 FR 44354, July 30, 2008) that
included PSD GHG tailoring options for regulating GHGs under the CAA.
As a result, EPA received comments from these entities and took them
into consideration when developing this proposal.
E. Executive Order 13132--Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. These proposed amendments would
ultimately simplify and reduce the burden on State and local agencies
associated with implementing the PSD and title V operating permits
programs, by providing that a source whose GHG emissions are below the
proposed levels will not have to obtain a PSD permit or
[[Page 55350]]
title V permit. Thus, Executive Order 13132 does not apply to this
action.
Consistent with EPA policy, EPA nonetheless consulted with State
and local officials early in the process of developing the proposed
regulation to permit them to have meaningful and timely input into its
development by publishing an advance notice of proposed rulemaking
(ANPR) [73 FR 44354, July 30, 2008] that included PSD GHG tailoring
options for regulating GHGs under the CAA. As a result of the ANPR, EPA
received several comments from State and local government agencies on
differing PSD GHG tailoring options presented in the ANPR which were
considered in this proposal.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175, entitled ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000), EPA may not issue a regulation that has tribal implications,
that imposes substantial direct compliance costs, and that is not
required by statute, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by tribal
governments, or EPA consults with tribal officials early in the process
of developing the proposed regulation and develops a tribal summary
impact statement.
EPA has concluded that this action may have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal governments nor preempt tribal law. There are no tribal
authorities currently issuing major NSR permits; however, this may
change in the future.
EPA consulted with tribal officials early in the process of
developing this regulation to permit them to have meaningful and timely
input into its development by publishing an ANPR that included PSD GHG
tailoring options for regulating GHGs under the CAA. [73 FR 44354, July
30, 2008]. As a result of the ANPR, EPA received several comments from
tribal officials on differing PSD GHG tailoring options presented in
the ANPR which were considered in this proposal.
Although Executive Order 13175 does not apply to this proposed
rule, EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because the Agency does not believe the environmental health or
safety risks addressed by this action present a disproportionate risk
to children. We do not believe this action creates any environmental
health or safety risks.
The public is invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure to GHGs.
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. This
action will not create any new requirements for sources in the energy
supply, distribution, or use sectors.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because any impacts that
it will have will be global in nature and will not affect local
communities or populations in a manner that adversely affects the level
of protection provided to human health or the environment.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the
Administrator determines that this action is subject to the provisions
of section 307(d). Section 307(d)(1)(V) provides that the provisions of
section 307(d) apply to ``such other actions as the Administrator may
determine.''
XII. Statutory Authority
The statutory authority for this action is provided by sections
307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42
U.S.C. 7401, 7411, 7414, 7416, and 7601). This action is also subject
to section 307(d) of the CAA (42 U.S.C. 7407(d)).
List of Subjects
40 CFR Part 51
Administrative practice and procedure, Air pollution control,
Carbon dioxide, Carbon dioxide equivalents, Environmental protection,
Greenhouse gases, Hydrofluorocarbons, Intergovernmental relations,
Methane, Nitrous oxide, Perfluorocarbons, Reporting and recordkeeping
requirements, Sulfur hexafluoride.
40 CFR Part 52
Air pollution control, Carbon dioxide, Carbon dioxide equivalents,
Environmental protection, Greenhouse gases, Hydrofluorocarbons,
Intergovernmental relations, Methane, Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping requirements, Sulfur hexafluoride.
40 CFR Part 70
Administrative practice and procedure, Air pollution control,
Carbon dioxide, Carbon dioxide equivalents, Environmental protection,
Greenhouse gases, Hydrofluorocarbons,
[[Page 55351]]
Intergovernmental relations, Methane, Nitrous oxide, Perfluorocarbons,
Reporting and recordkeeping requirements, Sulfur hexafluoride.
Administrative practice and procedure, Air pollution control,
Carbon dioxide, Carbon dioxide equivalents, Environmental protection,
Greenhouse gases, Hydrofluorocarbons, Methane, Nitrous oxide,
Perfluorocarbons, Reporting and recordkeeping requirements, Sulfur
hexafluoride.
Dated: September 30, 2009.
Lisa P. Jackson,
Administrator.
For reasons stated in the preamble, title 40, chapter I of the Code
of Federal Regulations is proposed to be amended as set forth below.
PART 51--[AMENDED]
1. The authority citation for part 51 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart I--[Amended]
2. Section 51.166 is amended:
a. By revising paragraphs (b)(1)(i)(a), and (b)(1)(i)(b);
b. By adding paragraph (b)(1)(i)(d);
c. By revising paragraph (b)(23)(i); and
d. By adding paragraphs (b)(57) and (b)(58).
The revisions and additions read as follows:
Sec. 51.166 Prevention of significant deterioration of air quality.
* * * * *
(b) * * *
(1)(i) * * *
(a) Any of the following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year or more of any
regulated NSR pollutant (except for greenhouse gases (as defined under
paragraph (b)(57) of this section), except as provided under paragraph
(b)(1)(i)(d) of this section): Fossil fuel-fired steam electric plants
of more than 250 million British thermal units per hour heat input,
coal cleaning plants (with thermal dryers), kraft pulp mills, portland
cement plants, primary zinc smelters, iron and steel mill plants,
primary aluminum ore reduction plants (with thermal dryers), primary
copper smelters, municipal incinerators capable of charging more than
250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid
plants, petroleum refineries, lime plants, phosphate rock processing
plants, coke oven batteries, sulfur recovery plants, carbon black
plants (furnace process), primary lead smelters, fuel conversion
plants, sintering plants, secondary metal production plants, chemical
process plants (which does not include ethanol production facilities
that produce ethanol by natural fermentation included in NAICS codes
325193 or 312140), fossil-fuel boilers (or combinations thereof)
totaling more than 250 million British thermal units per hour heat
input, petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels, taconite ore processing plants,
glass fiber processing plants, and charcoal production plants;
(b) Notwithstanding the stationary source size specified in
paragraph (b)(1)(i)(a) of this section, any stationary source which
emits, or has the potential to emit, 250 tons per year or more of a
regulated pollutant (except for greenhouse gases (as defined under
paragraph (b)(57) of this section), except as provided under paragraph
(b)(1)(i)(d) of this section); or
* * * * *
(d) Notwithstanding any provision to the contrary in this section,
any stationary source which emits, or has the potential to emit, at
least 25,000 tpy CO2e of greenhouse gases, as defined under
paragraph (b)(58) of this section.
* * * * *
(23)(i) Significant means, in reference to a net emissions increase
or the potential of a source to emit any of the following pollutants, a
rate of emissions that would equal or exceed any of the following
rates:
Pollutant and Emissions Rate
Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Particulate matter: 25 tpy of particulate matter emissions. 15 tpy of
PM10 emissions.
PM2.5: 10 tpy of direct PM2.5 emissions; 40 tpy
of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless
demonstrated not to be a PM2.5 precursor under paragraph
(b)(49) of this section
Ozone: 40 tpy of volatile organic compounds or nitrogen oxides
Lead: 0.6 tpy
Fluorides: 3 tpy
Sulfuric acid mist: 7 tpy
Hydrogen sulfide (H2S): 10 tpy
Total reduced sulfur (including H2S): 10 tpy
Reduced sulfur compounds (including H2S): 10 tpy
Municipal waste combustor organics (measured as total tetra- through
octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 x
10-6 megagrams per year (3.5 x 10-6 tpy)
Municipal waste combustor metals (measured as particulate matter): 14
megagrams per year (15 tpy)
Municipal waste combustor acid gases (measured as sulfur dioxide and
hydrogen chloride): 36 megagrams per year (40 tpy)
Municipal solid waste landfill emissions (measured as nonmethane
organic compounds): 45 megagrams per year (50 tpy)
Greenhouse gases: [10,000 to 25,000] CO2e
* * * * *
(57) Greenhouse gas, or GHG, means carbon dioxide (CO2),
methane (CH4), nitrous oxide (N2O), sulfur
hexafluoride (SF6), hydrofluorocarbons (HFCs), and
perfluorocarbons (PFCs).
(58) Carbon dioxide equivalent, or CO2e, means a metric used to
compare the emissions from various greenhouse gases based upon their
global warming potential (GWP). The CO2e for a gas is
determined by multiplying the mass of the gas by the associated GWP.
The applicable GWPs and guidance on how to calculate a source's GHG
emissions in tpy CO2e can be found in EPA's ``Inventory of
U.S. Greenhouse Gas Emissions and Sinks,'' which is updated annually
under existing commitment under the United Nations Framework Convention
on Climate Change (UNFCCC).
* * * * *
PART 52--[AMENDED]
3. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
4. Section 52.21 is amended:
a. By revising paragraphs (b)(1)(i)(a) and (b)(1)(i)(b);
b. By adding paragraph (b)(1)(i)(d);
c. By revising paragraph (b)(23)(i); and
d. By adding paragraphs (b)(59) and (b)(60).
The revisions and additions read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
* * * * *
(b) * * *
(1)(i) * * *
(a) Any of the following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year or more of any
regulated NSR pollutant (except for greenhouse gases (as defined under
paragraph (b)(59) of this section), except as provided under paragraph
(b)(1)(i)(d) of this section): Fossil fuel-fired steam electric plants
of more than 250 million British thermal units per hour heat input,
coal cleaning
[[Page 55352]]
plants (with thermal dryers), kraft pulp mills, portland cement plants,
primary zinc smelters, iron and steel mill plants, primary aluminum ore
reduction plants (with thermal dryers), primary copper smelters,
municipal incinerators capable of charging more than 250 tons of refuse
per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum
refineries, lime plants, phosphate rock processing plants, coke oven
batteries, sulfur recovery plants, carbon black plants (furnace
process), primary lead smelters, fuel conversion plants, sintering
plants, secondary metal production plants, chemical process plants
(which does not include ethanol production facilities that produce
ethanol by natural fermentation included in NAICS codes 325193 or
312140), fossil-fuel boilers (or combinations thereof) totaling more
than 250 million British thermal units per hour heat input, petroleum
storage and transfer units with a total storage capacity exceeding
300,000 barrels, taconite ore processing plants, glass fiber processing
plants, and charcoal production plants;
(b) Notwithstanding the stationary source size specified in
paragraph (b)(1)(i) of this section, any stationary source which emits,
or has the potential to emit, 250 tons per year or more of a regulated
NSR pollutant (except for greenhouse gases (as defined under paragraph
(b)(59) of this section), except as provided under paragraph
(b)(1)(i)(d) of this section); or
* * * * *
(d) Notwithstanding any provision to the contrary in this section,
any stationary source of air pollutants which emits, or has the
potential to emit, 25,000 tpy CO2e of greenhouse gases, as
defined under paragraph (b)(60) of this section.
* * * * *
(23)(i) Significant means, in reference to a net emissions increase
or the potential of a source to emit any of the following pollutants, a
rate of emissions that would equal or exceed any of the following
rates:
Pollutant and Emissions Rate
Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Particulate matter: 25 tpy of particulate matter emissions
PM10: 15 tpy
PM2.5: 10 tpy of direct PM2.5 emissions; 40 tpy
of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless
demonstrated not to be a PM2.5 precursor under paragraph
(b)(50) of this section
Ozone: 40 tpy of volatile organic compounds or nitrogen oxides
Lead: 0.6 tpy
Fluorides: 3 tpy
Sulfuric acid mist: 7 tpy
Hydrogen sulfide (H2S): 10 tpy
Total reduced sulfur (including H2S): 10 tpy
Reduced sulfur compounds (including H2S): 10 tpy
Municipal waste combustor organics (measured as total tetra- through
octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 x
10-6 megagrams per year (3.5 x 10-6 tpy)
Municipal waste combustor metals (measured as particulate matter): 14
megagrams per year (15 tpy)
Municipal waste combustor acid gases (measured as sulfur dioxide and
hydrogen chloride): 36 megagrams per year (40 tpy)
Municipal solid waste landfill emissions (measured as nonmethane
organic compounds): 45 megagrams per year (50 tpy)
Greenhouse gases: [10,000 to 25,000] CO2e
* * * * *
(59) Greenhouse gas, or GHG, means carbon dioxide (CO2),
methane (CH4), nitrous oxide (N2O), sulfur
hexafluoride (SF6), hydrofluorocarbons (HFCs), and
perfluorocarbons (PFCs).
(60) Carbon dioxide equivalent, or CO2e, means a metric used to
compare the emissions from various greenhouse gases based upon their
global warming potential (GWP). The CO2e for a gas is
determined by multiplying the mass of the gas by the associated GWP.
The applicable GWPs and guidance on how to calculate a source's GHG
emissions in tpy CO2e can be found in EPA's ``Inventory of
U.S. Greenhouse Gas Emissions and Sinks,'' which is updated annually
under existing commitment under the United Nations Framework Convention
on Climate Change (UNFCCC).
* * * * *
5. Section 52.53 is revised to read as follows:
Sec. 52.53 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Alabama's plans for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977. In addition, continued satisfaction of the requirements of Part D
for the ozone portion of the SIP depends on the adoption and submittal
of RACT requirements by July 1, 1980 for the sources covered by CTGs
issued between January 1978 and January 1979 and adoption and submittal
by each subsequent January of additional RACT requirements for sources
covered by CTGs issued by the previous January.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
6. Section 52.72 is revised to read as follows:
Sec. 52.72 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Alaska's plan for the attainment and maintenance
of the national standards. The State included in the plan a regulation
prohibiting idling of unattended motor vehicles. However, the plan
stated that this regulation was included for informational purposes
only, and was not to be considered part of the control strategy to
implement the national standards for carbon monoxide. Accordingly, this
regulation is not considered a part of the applicable plan.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
[[Page 55353]]
7. Section 52.123 is amended by adding paragraph (l) to read as
follows:
Sec. 52.123 Approval status.
* * * * *
(l)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
8. Section 52.172 is revised to read as follows:
Sec. 52.172 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Arkansas' plan for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Further, the Administrator finds that the plan satisfies all
requirements of Part D of the Clean Air Act, as amended in 1977, except
as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
9. Section 52.223 is amended by adding paragraph (f) to read as
follows:
Sec. 52.223 Approval status.
* * * * *
(f)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
10. Section 52.323 is revised to read as follows:
Sec. 52.323 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Colorado's plan for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds that the plan satisfies
all requirements of Part D, Title 1, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
11. Section 52.373 is amended by adding paragraph (c) to read as
follows:
Sec. 52.373 Approval status.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
12. Section 52.422 is amended by adding paragraph (c) to read as
follows:
Sec. 52.422 Approval status.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
13. Section 52.472 is amended by adding paragraph (g) to read as
follows:
Sec. 52.472 Approval status.
* * * * *
(g)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
[[Page 55354]]
14. Section 52.522 is revised to read as follows:
Sec. 52.522 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Florida's plans for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977, except as noted below. In addition, continued satisfaction of the
requirements of Part D, for the ozone portion of the SIP depends on the
adoption and submittal of RACT requirements by July 1, 1980 for those
sources covered by CTGs issued between January 1978 and January 1979
and adoption and submittal by each subsequent January of additional
RACT requirements for sources covered by CTGs issued by the previous
January.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
15. Section 52.572 is revised to read as follows:
Sec. 52.572 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Georgia's plans for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
16. Section 52.623 is revised to read as follows:
Sec. 52.623 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Hawaii's plan for attainment and maintenance of
the national standards. The State included various provisions in its
plan to provide for the attainment of State ambient air quality
standards. As described in the Governor's letters of January 28, May 8,
and May 22, 1972, these provisions were included for information
purposes only and were not to be considered a part of the plan to
implement national standards. Accordingly, these additional provisions
are not considered a part of the applicable plan.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
17. Section 52.673 is revised to read as follows:
Sec. 52.673 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Idaho's plan for the attainment and maintenance
of the national standards.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
18. Section 52.722 is amended by adding paragraph (d) to read as
follows:
Sec. 52.722 Approval status.
* * * * *
(d)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
19. Section 52.773 is amended by adding paragraph (k) to read as
follows:
Sec. 52.773 Approval status.
* * * * *
(k)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as
[[Page 55355]]
significant GHG emissions increases less than [10,000 to 25,000] tpy
CO2e.
20. Section 52.822 is amended by adding paragraph (b) to read as
follows:
Sec. 52.822 Approval status.
* * * * *
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
21. Section 52.873 is amended by adding paragraph (d) to read as
follows:
Sec. 52.873 Approval status.
* * * * *
(d)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
22. Section 52.923 is amended by adding paragraph (c) to read as
follows:
Sec. 52.923 Approval status.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
23. Section 52.986 is amended by adding paragraph (c) to read as
follows:
Sec. 52.986 Significant deterioration of air quality.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
24. Section 52.1022 is revised to read as follows:
Sec. 52.1022 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Maine's plan, as identified in Sec. 52.1020,
for the attainment and maintenance of the national standards under
section 110 of the Clean Air Act.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
25. Section 52.1073 is amended by adding paragraph (h) to read as
follows:
Sec. 52.1073 Approval status.
* * * * *
(h)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
26. Section 52.1123 is amended by adding paragraph (c) to read as
follows:
Sec. 52.1123 Approval status.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
27. Section 52.1172 is revised to read as follows:
Sec. 52.1172 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Michigan's plan for the attainment and
maintenance of the National Ambient Air Quality Standards under section
110 of the Clean Air Act. Furthermore, the
[[Page 55356]]
Administrator finds the plan satisfies all requirements of Part D,
Title I of the Clean Air Act as amended in 1977, except as noted below.
In addition, continued satisfaction of the requirements of Part D for
the ozone portion of the SIP depends on the adoption and submittal of
RACT requirements by July 1, 1980 for the sources covered by CTGs
between January 1978 and January 1979 and adoption and submittal by
each subsequent January of additional RACT requirements for sources
covered by CTGs issued by the previous January.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
28. Section 52.1223 is revised to read as follows:
Sec. 52.1223 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Minnesota's plans for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds the plan satisfies all
requirements of Part D, Title 1, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
29. Section 52.1272 is revised to read as follows:
Sec. 52.1272 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Mississippi's plan for the attainment and
maintenance of national standards under section 110 of the Clean Air
Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
30. Section 52.1323 is amended by adding paragraph (n) to read as
follows:
Sec. 52.1323 Approval status.
* * * * *
(n)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
31. Section 52.1372 is revised to read as follows:
Sec. 52.1372 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Montana's plans for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds the plans satisfy all
requirements of Part D, Title I, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
32. Section 52.1422 is revised to read as follows:
Sec. 52.1422 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Nebraska's plan for the attainment and
maintenance of the national standards. No action is taken on the new
source review regulations to comply with section 172(b)(6) and section
173 of the Clean Air Act as amended in 1977, and 40 CFR 51.18(j).
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
[[Page 55357]]
33. Section 52.1472 is amended by adding paragraph (d) to read as
follows:
Sec. 52.1472 Approval status.
* * * * *
(d)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
34. Section 52.1522 is amended by adding paragraph (c) to read as
follows:
Sec. 52.1522 Approval status.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
35. Section 52.1573 is revised to read as follows:
Sec. 52.1573 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves New Jersey's plans for attainment and
maintenance of the national ambient air quality standards under section
110 of the Clean Air Act. Furthermore, the Administrator finds that the
plan satisfies all requirements of Part D, Title I, of the Clean Air
Act, as amended in 1977, except as noted below in Sec. 52.1581. In
addition, continued satisfaction of the requirements of Part D for the
ozone portion of the SIP depends on the adoption and submittal of RACT
requirements by July 1, 1980 for the sources covered by CTGs issued
between January 1978 and January 1979 and adoption and submittal by
each subsequent January of additional RACT requirements for sources
covered by CTGs issued by the previous January.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
36. Section 52.1622 is revised to read as follows:
Sec. 52.1622 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves New Mexico's plan for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Further, the Administrator finds that the plan satisfies all
requirements of Part D of the Clean Air Act, as amended in 1977, except
as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
37. Section 52.1673 is amended by adding paragraph (b) to read as
follows:
Sec. 52.1673 Approval status.
* * * * *
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
38. Section 52.1772 is amended by adding paragraph (c) to read as
follows:
Sec. 52.1772 Approval status.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
39. Section 52.1822 is revised to read as follows:
Sec. 52.1822 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves the North Dakota plan for the attainment and
maintenance of the national standards.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed
[[Page 55358]]
25,000 tpy CO2e. EPA takes no action on the PSD permitting
threshold provisions to the extent they subject to PSD requirements
sources of GHG emissions that are less than 25,000 tpy CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
40. Section 52.1873 is revised to read as follows:
Sec. 52.1873 Approval status.
(a) With the exceptions set forth in this subpart the Administrator
approves Ohio's plan for the attainment and maintenance of the National
Ambient Air Quality Standards under section 110 of the Clean Air Act.
Furthermore, the Administrator finds the plan satisfies all the
requirements of Part D, Title 1 of the Clean Air Act as amended in
1977, except as noted below. In addition, continued satisfaction of the
requirements of Part D for the ozone portion of the SIP depends on the
adoption and submittal of RACT requirements by January 1, 1981 for the
sources covered by CTGs between January 1978 and January 1979 and
adoption and submittal by each subsequent January of additional RACT
requirements for sources covered by CTGs issued by the previous
January.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
41. Section 52.1922 is revised to read as follows:
Sec. 52.1922 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Oklahoma's plan for the attainment and
maintenance of the national standards under section 110 of the Clean
Air Act. Furthermore, the Administrator finds that the plan satisfies
all requirements of Part D, Title 1, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
42. Section 52.1972 is revised to read as follows:
Sec. 52.1972 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Oregon's plan for the attainment and maintenance
of the national standards under section 110 of the Clean Air Act.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
43. Section 52.2023 is amended by adding paragraph (l) to read as
follows:
Sec. 52.2023 Approval status.
* * * * *
(l)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
44. Section 52.2072 is revised to read as follows:
Sec. 52.2072 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Rhode Island's plan, as identified in Sec.
52.2070 of this subpart, for the attainment and maintenance of the
national standards under section 110 of the Clean Air Act. Furthermore,
the Administrator finds the plan satisfies all requirements of Part D,
Title I, of the Clean Air Act, as amended in 1977, except as noted
below. In addition, continued satisfaction of the requirements of Part
D for the ozone portion of the SIP depends on the adoption and
submittal of RACT requirements by January 1, 1981 for the sources
covered by CTGs issued between January 1978 and January 1979 and
adoption and submittal by each subsequent January as additional RACT
requirements for sources covered by CTGs issued by the previous
January.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
45. Section 52.2122 is amended by adding paragraph (c) to read as
follows:
[[Page 55359]]
Sec. 52.2122 Approval status.
* * * * *
(c)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
46. Section 52.2172 is revised to read as follows:
Sec. 52.2172 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves South Dakota's plan as meeting the requirements
of section 110 of the Clean Air Act, as amended in 1977. Furthermore,
the Administrator finds that the plan satisfies all requirements of
Part D of the Clean Air Act, as amended in 1977.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
47. Section 52.2222 is amended by adding paragraph (d) to read as
follows:
Sec. 52.2222 Approval status.
* * * * *
(d)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
48. Section 52.2273 is revised to read as follows:
Sec. 52.2273 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Texas' plan for the attainment and maintenance
of the national standards under section 110 of the Clean Air Act.
Furthermore, the Administrator finds that the plan satisfies all
requirements of Part D, Title 1, of the Clean Air Act as amended in
1977, except as noted below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
49. Section 52.2323 is revised to read as follows:
Sec. 52.2323 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Utah's plan as meeting the requirements of
section 110 of the Clean Air Act as amended in 1977. Furthermore, the
Administrator finds that the plan satisfies all requirements of Part D,
Title 1, of the Clean Air Act as amended in 1977, except as noted
below.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
50. Section 52.2372 is revised to read as follows:
Sec. 52.2372 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Vermont's plan as identified in Sec. 52.2370
for the attainment and maintenance of the national standards under
section 110 of the Clean Air Act. Furthermore, the Administrator finds
the plans satisfy all requirements of Part D, Title I, of the Clean Air
Act, as amended in 1977, except as noted below. In addition, continued
satisfaction of the requirements of Part D for the ozone portion of the
SIP depends on the adoption and submittal of RACT requirements by July
1, 1980 for the sources covered by CTGs issued between January, 1978
and January, 1979 and adoption and submittal by each subsequent January
of additional RACT requirements for sources covered by CTGs issued by
the previous January.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
51. Section 52.2423 is amended by adding paragraph (t) to read as
follows:
[[Page 55360]]
Sec. 52.2423 Approval status.
* * * * *
(t)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
52. Section 52.2473 is revised to read as follows:
Sec. 52.2473 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Washington's plan for the attainment and
maintenance of National Standards under section 110 of the Clean Air
Act. The regulations included in the SIP (see Table 52.2479) are
applicable statewide unless otherwise noted in the regulation itself.
Furthermore, the Administrator finds that the plan as identified in
Sec. 52.2470 satisfies requirements of Part D, Title 1, of the Clean
Air act as amended in 1977, except as noted in the following sections.
Continued satisfaction of the requirements of Part D for the ozone
portion of the SIP depends on the adoption and submittal of RACT
requirements by July 1, 1980 for the sources covered by CTGs issued
between January 1978 and January 1979 and adoption and submittal by
each subsequent January of additional RACT requirements for sources
covered by CTGs issued by the previous January. New source review
permits pursuant to section 173 of CAA will not be deemed valid by EPA
unless the provisions of section V of the emission offset interpretive
rule published on January 16, 1979 (44 FR 3274) are met.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
53. Section 52.2522 is amended by adding paragraph (j) to read as
follows:
Sec. 52.2522 Approval status.
* * * * *
(j)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
54. Section 52.2572 is revised to read as follows:
Sec. 52.2572 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Wisconsin's plans for the attainment and
maintenance of the National Ambient Air Quality Standards under section
110 of the Clean Air Act. Furthermore, the Administrator finds the
plans satisfy all requirements of Part D, Title I, of the Clean Air Act
as amended in 1977, except as noted below. In addition, continued
satisfaction of the requirements of Part D for the Ozone portion of the
State Implementation Plan depends on the adoption and submittal of RACT
requirements on:
(1) Group III Control Techniques Guideline sources within 1 year
after January 1st following the issuance of each Group III control
technique guideline; and
(2) Major (actual emissions equal or greater than 100 tons VOC per
year) non-control technique guideline sources in accordance with the
State's schedule contained in the 1982 Ozone SIP revision for
Southeastern Wisconsin.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
55. Section 52.2622 is revised to read as follows:
Sec. 52.2622 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Wyoming's plans as meeting the requirements of
section 110 of the Clean Air Act, as amended in 1977. Furthermore, the
Administrator finds that the plans satisfy the requirements of Part D,
Title I, of the Clean Air Act.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
56. Section 52.2672 is revised to read as follows:
Sec. 52.2672 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Guam's plan for the attainment and maintenance
of the National Standards.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of
[[Page 55361]]
GHG emissions that equal or exceed 25,000 tpy CO2e. EPA
takes no action on the PSD permitting threshold provisions to the
extent they subject to PSD requirements sources of GHG emissions that
are less than 25,000 tpy CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
57. Section 52.2722 is revised to read as follows:
Sec. 52.2722 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves Puerto Rico's plans for the attainment and
maintenance of national standards under section 110 of the Clean Air
Act. Furthermore, the Administrator finds that the plan satisfies all
requirements of Part D, Title I, of the Clean Air Act, as amended in
1977.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
58. Section 52.2772 is revised to read as follows:
Sec. 52.2772 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves the U.S. Virgin Islands plan for attainment and
maintenance of the national standards.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
59. Section 52.2822 is revised to read as follows:
Sec. 52.2822 Approval status.
(a) With the exceptions set forth in this subpart, the
Administrator approves American Samoa's plan for the attainment and
maintenance of the national standards.
(b)(1) Insofar as the PSD permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions to
the extent they subject to PSD requirements sources of GHG emissions
that equal or exceed 25,000 tpy CO2e. EPA takes no action on
the PSD permitting threshold provisions to the extent they subject to
PSD requirements sources of GHG emissions that are less than 25,000 tpy
CO2e.
(2) Insofar as the PSD significance levels concern sources of GHG
emissions, EPA limits its approval of such provisions to the extent
those provisions treat as significant GHG emissions increases that
equal or exceed [10,000 to 25,000] tpy CO2e. EPA takes no
action on the PSD significance level provisions to the extent they
treat as significant GHG emissions increases less than [10,000 to
25,000] tpy CO2e.
PART 70--[AMENDED]
60. The authority citation for part 70 continues to read as
follows:
Authority: 42 U.S.C. 7401, et seq.
61. Section 70.2 is amended to read as follows:
a. By adding definitions in alphabetical order for carbon dioxide
equivalent and greenhouse gas;
b. By revising paragraph (2) of the definition for major source;
and
c. By adding paragraph (4) to the definition for major source.
Sec. 70.2 Definitions.
* * * * *
Carbon dioxide equivalent, or CO2e, means a metric used
to compare the emissions from various greenhouse gases based upon their
global warming potential (GWP). The CO2e for a gas is
determined by multiplying the mass of the gas by the associated GWP.
The applicable GWPs and guidance on how to calculate a source's GHG
emissions in tpy CO2e can be found in EPA's ``Inventory of
U.S. Greenhouse Gas Emissions and Sinks,'' which is updated annually
under existing commitment under the United Nations Framework Convention
on Climate Change (UNFCCC).
* * * * *
Greenhouse gas, or GHG, means carbon dioxide (CO2),
methane (CH4), nitrous oxide (N2O), sulfur
hexafluoride (SF6), hydrofluorocarbons (HFCs), and
perfluorocarbons (PFCs).
* * * * *
Major source * * *
(2) A major stationary source of air pollutants (except for
greenhouse gases, except as otherwise provided in this section) as
defined in section 302 of the Act, that directly emits, or has the
potential to emit, 100 tpy or more of any air pollutant (including any
major source of fugitive emissions of any such pollutant, as determined
by rule by the Administrator). The fugitive emissions of a stationary
source shall not be considered in determining whether it is a major
stationary source for the purposes of section 302(j) of the Act, unless
the source belongs to one of the following categories of stationary
source:
* * * * *
(4) A stationary source that directly emits, or has the potential
to emit, 25,000 tpy CO2e or more of greenhouse gases that
are subject to regulation under the Act.
* * * * *
62. Appendix A to Part 70 is amended as follows:
a. By revising the introductory text;
b. By adding paragraph (d) under Alabama;
c. By adding paragraph (c) under Alaska;
d. By adding paragraph (e) under Arizona;
e. By adding paragraph (d) under Arkansas;
f. By adding paragraph (jj) under California;
g. By adding paragraph (c) under Colorado;
h. By adding paragraph (c) under Connecticut;
i. By adding paragraph (d) under Delaware;
j. By adding paragraph (d) under District of Columbia;
k. By adding paragraph (c) under Florida;
l. By adding paragraph (c) under Georgia;
m. By adding paragraph (d) under Hawaii;
[[Page 55362]]
n. By adding paragraph (c) under Idaho;
o. By adding paragraph (c) under Illinois;
p. By adding paragraph (d) under Indiana;
q. By adding paragraph (k) under Iowa;
r. By adding paragraph (e) under Kansas;
s. By adding paragraph (c) under Kentucky;
t. By adding paragraph (c) under Louisiana;
u. By adding paragraph (c) under Maine;
v. By adding paragraph (d) under Maryland;
w. By adding paragraph (c) under Massachusetts;
x. By adding paragraph (c) under Michigan;
y. By adding paragraph (d) under Minnesota;
z. By adding paragraph (c) under Mississippi;
aa. By adding paragraph (x) under Missouri;
bb. By adding paragraph (c) under Montana;
cc. By adding paragraph (j) under Nebraska, City of Omaha, Lincoln-
Lancaster County Health Department;
dd. By adding paragraph (d) under Nevada;
ee. By adding paragraph (c) under New Hampshire;
ff. By adding paragraph (e) under New Jersey;
gg. By adding paragraph (g) under New Mexico;
hh. By adding paragraph (e) under New York;
ii. By adding paragraph (e) under North Carolina;
jj. By adding paragraph (d) under North Dakota;
kk. By adding paragraph (d) under Ohio;
ll. By adding paragraph (c) under Oklahoma;
mm. By adding paragraph (c) under Oregon;
nn. By adding paragraph (c) under Pennsylvania;
oo. By adding paragraph (c) under Puerto Rico;
pp. By adding paragraph (c) under South Carolina;
qq. By adding paragraph (c) under Rhode Island;
rr. By adding paragraph (c) under South Dakota;
ss. By adding paragraph (f) under Tennessee;
tt. By adding paragraph (d) under Texas;
uu. By adding paragraph (c) under Utah;
vv. By adding paragraph (c) under Vermont;
ww. By adding paragraph (c) under the Virgin Islands;
xx. By adding paragraph (c) under Virginia;
yy. By adding paragraph (j) under Washington;
zz. By adding paragraph (f) under West Virginia;
aaa. By adding paragraph (c) under Wisconsin; and
bbb. By adding paragraph (c) under Wyoming.
Appendix A to Part 70--Approval of State and Local Operating Permits
This appendix provides information on the approval status of
State and Local operating Permit Programs. An approved State part 70
program applies to all part 70 sources, as defined in that approved
program, within such State, except for any source of air pollution
over which a federally recognized Indian Tribe has jurisdiction. EPA
limits its approval of the State permitting threshold provisions to
the extent those provisions require permits for sources of GHG
emissions that equal or exceed 100 tpy CO2e.
Alabama
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Alaska
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Arizona
* * * * *
(e) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Arkansas
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
California
* * * * *
(jj) Insofar as the State permitting threshold provisions
concern sources of GHG emissions, EPA limits its approval of such
provisions to the extent they require permits for sources of GHG
emissions that equal or exceed 25,000 tpy CO2e. EPA takes
no action on such provisions to the extent they require permits for
sources of GHG emissions that are less than 25,000 tpy
CO2e.
Colorado
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Connecticut
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Delaware
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
District of Columbia
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Florida
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Georgia
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits
[[Page 55363]]
for sources of GHG emissions that equal or exceed 25,000 tpy
CO2e. EPA takes no action on such provisions to the
extent they require permits for sources of GHG emissions that are
less than 25,000 tpy CO2e.
Hawaii
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Idaho
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Illinois
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Indiana
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Iowa
* * * * *
(k) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Kansas
* * * * *
(e) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Kentucky
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Louisiana
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Maine
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Maryland
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Massachusetts
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Michigan
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Minnesota
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Mississippi
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Missouri
* * * * *
(x) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Montana
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Nebraska; City of Omaha; Lincoln-Lancaster County Health Department
* * * * *
(j) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Nevada
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
New Hampshire
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
[[Page 55364]]
New Jersey
* * * * *
(e) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
New Mexico
* * * * *
(g) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
New York
* * * * *
(e) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
North Carolina
* * * * *
(e) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
North Dakota
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Ohio
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Oklahoma
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Oregon
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Pennsylvania
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Puerto Rico
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Rhode Island
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
South Carolina
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
South Dakota
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Tennessee
* * * * *
(f) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Texas
* * * * *
(d) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Utah
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Vermont
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Virgin Islands
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Virginia
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Washington
* * * * *
(j) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits
[[Page 55365]]
for sources of GHG emissions that equal or exceed 25,000 tpy
CO2e. EPA takes no action on such provisions to the
extent they require permits for sources of GHG emissions that are
less than 25,000 tpy CO2e.
West Virginia
* * * * *
(f) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Wisconsin
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
Wyoming
* * * * *
(c) Insofar as the State permitting threshold provisions concern
sources of GHG emissions, EPA limits its approval of such provisions
to the extent they require permits for sources of GHG emissions that
equal or exceed 25,000 tpy CO2e. EPA takes no action on
such provisions to the extent they require permits for sources of
GHG emissions that are less than 25,000 tpy CO2e.
PART 71--[AMENDED]
63. The authority citation for part 71 continues to read as
follows:
Authority: 42 U.S.C. 7401, et seq.
64. Section 71.2 is amended to follows:
a. By adding definitions in alphabetical order for carbon dioxide
equivalent and greenhouse gas;
b. By revising paragraph (2) of the definition for major source;
and
c. By adding paragraph (4) to the definition for major source.
Sec. 71.2 Definitions.
* * * * *
Carbon dioxide equivalent, or CO2e, means a metric used
to compare the emissions from various greenhouse gases based upon their
global warming potential (GWP). The CO2e for a gas is
determined by multiplying the mass of the gas by the associated GWP.
The applicable GWPs and guidance on how to calculate a source's GHG
emissions in tpy CO2e can be found in EPA's ``Inventory of
U.S. Greenhouse Gas Emissions and Sinks,'' which is updated annually
under existing commitment under the United Nations Framework Convention
on Climate Change (UNFCCC).
* * * * *
Greenhouse gas, or GHG, means carbon dioxide (CO2),
methane (CH4), nitrous oxide (N2O), sulfur
hexafluoride (SF6), hydrofluorocarbons (HFCs), and
perfluorocarbons (PFCs).
* * * * *
Major source * * *
(2) A major stationary source of air pollutants (except for
greenhouse gases, except as otherwise provided in this section), as
defined in section 302 of the Act, that directly emits or has the
potential to emit, 100 tpy or more of any air pollutant (including any
major source of fugitive emissions of any such pollutant, as determined
by rule by the Administrator). The fugitive emissions of a stationary
source shall not be considered in determining whether it is a major
stationary source for the purposes of section 302(j) of the Act, unless
the source belongs to one of the following categories of stationary
source:
* * * * *
(4) A stationary source that directly emits, or has the potential
to emit, 25,000 tpy CO2e or more of greenhouse gases that
are subject to regulation under the Act.
* * * * *
[FR Doc. E9-24163 Filed 10-23-09; 8:45 am]
BILLING CODE 6560-50-P