[Federal Register Volume 75, Number 170 (Thursday, September 2, 2010)]
[Proposed Rules]
[Pages 53892-53907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21701]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2010-0107; FRL-9190-7]
RIN-2060-AQ08
Action To Ensure Authority To Issue Permits Under the Prevention
of Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Substantial Inadequacy and SIP Call
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to find that 13 States with EPA-approved
State implementation plan (SIP) New Source Review Prevention of
Significant Deterioration (PSD) programs are substantially inadequate
to meet Clean Air Act (CAA) requirements because they do not appear to
apply PSD requirements to GHG-emitting sources. For each of these
States, EPA proposes to require the State (through a ``SIP Call'') to
revise its SIP as necessary to correct such inadequacies. EPA proposes
an expedited schedule for States to submit their corrective SIP
revision, in light of the fact that as of January 2, 2011, certain GHG-
emitting sources will become subject to the PSD requirements and may
not be able to obtain a PSD permit in order to construct or modify. As
for the rest of the States with approved SIP PSD programs, EPA solicits
comment on whether their PSD programs do or do not apply to GHG-
emitting sources. If, on the basis of information EPA receives, EPA
concludes that the SIP for such a State does not apply the PSD program
to GHG-emitting sources, then EPA will proceed to also issue a finding
of substantial inadequacy and a SIP Call for that State.
DATES: Comments. Comments must be received on or before October 4,
2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0107 by one of the following methods:
http://www.regulations.gov: Follow the online instructions
for submitting comments.
E-mail: [email protected].
Fax: (202) 566-9744.
Mail: Attention Docket ID No. EPA-HQ-OAR-2010-0107, U.S.
Environmental Protection Agency, EPA West (Air Docket), 1200
Pennsylvania Avenue, NW., Mail code: 6102T, Washington, DC 20460.
Please include a total of 2 copies. In addition, please mail a copy of
your comments on the information collection provisions to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725 17th Street, NW., Washington, DC
20503.
Hand Delivery: U.S. Environmental Protection Agency, EPA
West (Air Docket), 1301 Constitution Avenue, NW., Room 3334,
Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2010-0107.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2010-0107. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
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
[[Page 53893]]
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.
For additional instructions on submitting comments, go to section I.C
of the SUPPLEMENTARY INFORMATION section of this document.
Docket. All documents in the docket are listed in the 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 U.S. Environmental
Protection Agency, Air Docket, EPA/DC, EPA West Building, Room 3334,
1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Air Docket is (202)
566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-3450; fax number: (919) 541-5509; e-mail
address: [email protected].
SUPPLEMENTARY INFORMATION: For questions related to a specific State,
local, or tribal permitting authority, or to submit information
requested in this action, please contact the appropriate EPA regional
office:
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EPA regional Contact for regional office (person,
office mailing address, telephone number) Permitting authority
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I............... Dave Conroy, Chief, Air Programs Connecticut, Massachusetts, Maine, New Hampshire, Rhode
Branch, EPA Region 1, 5 Post Office Island, and Vermont.
Square, Suite 100, Boston, MA 02109-
3912, (617) 918-1661.
II.............. Raymond Werner, Chief, Air Programs New Jersey, New York, Puerto Rico, and Virgin Islands.
Branch, EPA Region 2, 290 Broadway,
25th Floor, New York, NY 10007-
1866, (212) 637-3706.
III............. Kathleen Anderson, Chief, Permits District of Columbia, Delaware, Maryland, Pennsylvania,
and Technical Assessment Branch, Virginia, and West Virginia.
EPA Region 3, 1650 Arch Street,
Philadelphia, PA 19103-2029, (215)
814-2173.
IV.............. Dick Schutt, Chief, Air Planning Alabama, Florida, Georgia, Kentucky, Mississippi, North
Branch, EPA Region 4, Atlanta Carolina, South Carolina, and Tennessee.
Federal Center, 61 Forsyth Street,
SW, Atlanta, GA 30303-3104, (404)
562-9033.
V............... J. Elmer Bortzer, Chief, Air Illinois, Indiana, Michigan, Minnesota, Ohio, and
Programs Branch (AR-18J), EPA Wisconsin.
Region 5, 77 West Jackson
Boulevard, Chicago, IL 60604-3507,
(312) 886-1430.
VI.............. Jeff Robinson, Chief, Air Permits Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
Section, EPA Region 6, Fountain
Place 12th Floor, Suite 1200, 1445
Ross Avenue, Dallas, TX 75202-2733,
(214) 665-6435.
VII............. Mark Smith, Chief, Air Permitting Iowa, Kansas, Missouri, and Nebraska.
and Compliance Branch, EPA Region
7, 901 North 5th Street, Kansas
City, KS 66101, (913) 551-7876.
VIII............ Carl Daly, Unit Leader, Air Colorado, Montana, North Dakota, South Dakota, Utah, and
Permitting, Monitoring & Modeling Wyoming.
Unit, EPA Region 8, 1595 Wynkoop
Street, Denver, CO 80202-1129,
(303) 312-6416.
IX.............. Gerardo Rios, Chief, Permits Office, Arizona; California; Hawaii and the Pacific Islands;
EPA Region 9, 75 Hawthorne Street, Indian Country within Region 9 and Navajo Nation; and
San Francisco, CA 94105, (415) 972- Nevada.
3974.
X............... Nancy Helm, Manager, Federal and Alaska, Idaho, Oregon, and Washington.
Delegated Air Programs Unit, EPA
Region 10, 1200 Sixth Avenue, Suite
900, Seattle, WA 98101, (206) 553-
6908.
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I. General Information
A. Does this action apply to me?
Entities potentially affected by this rule include States, local
permitting authorities, and tribal authorities.\1\ Any SIP-approved PSD
air permitting regulation that is not structured such that it includes
GHGs among pollutants subject to the PSD program will potentially be
found to be substantially inadequate to meet CAA requirements, under
CAA section 110(k)(5), and the State will potentially be affected by
this rule. For example, if a State's PSD regulation identifies its
regulated NSR pollutants by specifically listing each individual
pollutant and the list omits GHGs, then the regulation is substantially
inadequate.
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\1\ EPA respects the unique relationship between the U.S.
government and tribal authorities and acknowledges that tribal
concerns are not interchangeable with State concerns. However, for
convenience, we refer to ``States'' in this rulemaking to
collectively mean States, local permitting authorities, and tribal
authorities.
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Entities potentially affected by this rule also include sources in
all industry groups, which have a direct obligation under the CAA to
obtain a PSD permit for GHGs for projects that meet the applicability
thresholds set forth in the Tailoring Rule.\2\ This independent
obligation on sources is specific to PSD and derives from CAA section
165(a). Any source that is subject to a State PSD air permitting
regulation not structured to apply to GHG-emitting sources will
potentially rely on this rule to obtain a permit that contains emission
limitations that conform to requirements under CAA section 165(a). The
majority of entities potentially affected by this
[[Page 53894]]
action are expected to be in the following groups:
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\2\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3,
2010). The Tailoring Rule is described in more detail later in this
preamble.
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Industry group NAICS \a\
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Utilities (electric, natural gas, other 2211, 2212, 2213.
systems).
Manufacturing (food, beverages, 311, 312, 313, 314, 315, 316.
tobacco, textiles, leather).
Wood product, paper manufacturing...... 321, 322.
Petroleum and coal products 32411, 32412, 32419.
manufacturing.
Chemical manufacturing................. 3251, 3252, 3253, 3254, 3255,
3256, 3259.
Rubber product manufacturing........... 3261, 3262.
Miscellaneous chemical products........ 32552, 32592, 32591, 325182,
32551.
Nonmetallic mineral product 3271, 3272, 3273, 3274, 3279.
manufacturing.
Primary and fabricated metal 3311, 3312, 3313, 3314, 3315,
manufacturing. 3321, 3322, 3323, 3324, 3325,
3326, 3327, 3328, 3329.
Machinery manufacturing................ 3331, 3332, 3333, 3334, 3335,
3336, 3339.
Computer and electronic products 3341, 3342, 3343, 3344, 3345,
manufacturing. 4446.
Electrical equipment, appliance, and 3351, 3352, 3353, 3359.
component manufacturing.
Transportation equipment manufacturing. 3361, 3362, 3363, 3364, 3365,
3366, 3366, 3369.
Furniture and related product 3371, 3372, 3379.
manufacturing.
Miscellaneous manufacturing............ 3391, 3399.
Waste management and remediation....... 5622, 5629.
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 notice will be
posted on the EPA's 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-2010-0107.
2. Tips for preparing your comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
D. How is the preamble organized?
The information presented in this preamble is organized as follows:
I. 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 is the preamble organized?
II. Overview of Proposed Rule
III. Background
A. CAA and Regulatory Context
B. State PSD SIPs
IV. Proposed Action: Finding of Substantial Inadequacy and SIP Call
A. Introduction
B. States With SIP PSD Applicability Provisions That Do Not
Appear To Apply to GHG-Emitting Sources
C. States With SIP PSD Applicability Provisions That Do Appear
To Apply to GHG-Emitting Sources
D. Proposed Finding of SIP Substantial Inadequacy and SIP Call;
Solicitation of Comment
E. Comment Period
F. State Actions
G. EPA Actions on SIP Submittals; Findings of Failure To Submit
and Promulgation of FIPs
H. Streamlining the State Process for SIP Development and
Submittal
I. Primacy of the SIP Process
J. Sanctions
K. Title V
V. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045--Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
[[Page 53895]]
I. National Technology Transfer and Advancement Act
J. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
VI. Statutory Authority
II. Overview of Proposed Rule
In this rulemaking, along with the companion rulemaking described
elsewhere in this preamble, EPA is taking another in a series of
actions concerning the PSD program for GHG-emitting sources that will
begin on January 2, 2011. These two rulemakings take steps to assure
that in 13 States that do not appear to have authority to issue PSD
permits to GHG-emitting sources at present, either the State or EPA
will have the authority to issue PSD permits by January 2, 2011.
Although for most states, either the State or EPA is already authorized
to issue PSD permits for GHG-emitting sources as of that date, our
preliminary information shows that these 13 States have EPA-approved
PSD programs that do not appear to include GHG-emitting sources and
therefore do not appear to authorize these states to issue PSD permits
to such sources. In this rulemaking, EPA proposes to find that these 13
States' SIPs are substantially inadequate to comply with CAA
requirements and, accordingly, proposes to issue a SIP Call to require
a corrective SIP revision that applies their SIP PSD programs to GHG-
emitting sources. In a companion rulemaking, EPA proposes a FIP that
would give EPA authority to apply EPA's PSD program to GHG-emitting
sources in case such a State is unable to submit a corrective SIP
revision by its deadline.
Under the CAA PSD program, stationary sources must obtain a permit
prior to undertaking construction or modification projects that would
result in specified amounts of new or increased emissions of air
pollutants that are subject to regulation under other provisions of the
CAA. CAA sections 165(a), 169(1). The permit must, among other things,
impose emission limitations associated with the best available control
technology (BACT). CAA section 165(a)(4).
In recent months, EPA has taken four related actions that, taken
together, trigger PSD applicability for GHG sources on and after
January 2, 2011, but limit the scope of PSD. These actions included, as
they are commonly called, the ``Endangerment Finding'' and ``Cause or
Contribute Finding,'' which were issued in a single final action,\3\
the ``Johnson Memo Reconsideration,'' \4\ the ``Light-Duty Vehicle
Rule,'' \5\ and the ``Tailoring Rule.'' \6\ Taken together, these
actions established regulatory requirements for GHGs emitted from new
motor vehicles and new motor vehicle engines, determined that such
regulations, when they take effect on January 2, 2011, will subject
GHGs emitted from stationary sources to PSD requirements, and limited
the applicability of PSD requirements to GHG sources on a phased-in
basis.
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\3\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
\4\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010). This action finalizes EPA's response to a petition for
reconsideration of ``EPA's Interpretation of Regulations that
Determine Pollutants Covered by Federal Prevention of Significant
Deterioration (PSD) Permit Program'' (commonly referred to as the
``Johnson Memo''), December 18, 2008.
\5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
\6\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
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We are taking this action on the basis of: Our analysis of the
affected States' SIP provisions and other relevant State law; the
States' analyses of their SIP provisions and State law, as indicated in
letters sent to us as required under the Tailoring Rule; \7\ and direct
consultation with the individual states and with the National
Association of Clean Air Agencies (NACAA). As further described in
section IV.D of this preamble, EPA compiled relevant provisions of the
affected States' SIPs and other State law into a Technical Support
Document for this rulemaking, which can be found in the docket for this
rulemaking. Our analysis, along with information received from
consulting with the states, indicates that the EPA-approved SIPs for 13
States appear to not apply the PSD program to GHG sources. In many of
these states, the SIP applicability provisions apply the PSD program to
sources of specifically listed air pollutants and do not include GHGs.
In one State, Connecticut, the SIP explicitly precludes the application
of PSD to GHG-emitting sources. In other states, the SIP applicability
provisions apply the PSD program generally to regulated pollutants, and
these provisions, by their terms, cover GHGs; however, these states
have other constitutional, State law, or SIP provisions that may limit
their State laws or SIP requirements to applying only when specifically
approved by the appropriate State authority. These constitutional or
statutory provisions may limit the scope of the State PSD applicability
provisions expressly to pollutants identified at a certain point in
time as subject to PSD. For example, if the State has not yet expressly
identified GHGs as subject to its PSD program, the authority to
regulate GHG-emitting sources may not exist. As a result, absent
further action, GHG sources that will be required to obtain a PSD
permit for construction or modification on and after January 2, 2011,
will be unable to obtain that permit and therefore may be unable to
proceed with planned construction or modification in those states.
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\7\ In the Tailoring Rule, EPA asked states to advise EPA by
letter, within 60 days of publication of the Tailoring Rule, how the
states intended to implement the requirements of the Tailoring Rule,
including whether the states had authority to apply their PSD
program to GHG-emitting sources.
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In this rulemaking, we are proposing to find that under CAA section
110(k)(5), the SIP for each of these 13 States is substantially
inadequate to meet the CAA PSD requirements, and we are proposing a SIP
Call to require that each affected State submit a corrective SIP
revision that applies the PSD program to GHG sources. These states are
listed in table IV-1, ``States with SIPs that Do Not Appear to Apply
PSD to GHG Sources (Presumptive SIP Call List).''
As for the remaining States with EPA-approved SIP PSD programs, our
preliminary research indicates that their SIP PSD applicability
provisions apply the PSD programs more broadly--for example, many apply
to sources of ``regulated NSR pollutants''--and therefore appear to
include GHG-emitting sources. Moreover, we have not to this point
received information about other provisions in the State constitutional
or other State or SIP law that would have the effect of limiting the
applicability of the PSD provisions to exclude GHG-emitting sources.
Those remaining States, which include all the states with EPA-approved
PSD programs not listed in table IV-1, are listed in table IV-2,
``States with SIPs that Appear to Apply PSD to GHG Sources (Presumptive
Adequacy List).''
Even so, we are aware of the possibility that some of those states
may also have other State law provisions that may have the effect of
limiting their PSD SIP requirements to applying only to pollutants
specifically approved by the appropriate State authority, which would
not include GHGs. In light of this possibility, we are soliciting
comment on whether each of those remaining States' SIPs (see table IV-
2) apply PSD to GHG-emitting sources. If, for any such State, we
receive information that leads us to conclude that its SIP does not
apply PSD to GHG-emitting sources, we will take final action to issue a
[[Page 53896]]
finding of substantial inadequacy and a SIP Call for that State, on the
same schedule as that for the 13 States.
In a companion action to this rulemaking, we are proposing to
promulgate, in any State that is not in a position to make a timely
submittal of the corrective SIP revision, a FIP that will assure that
sources will be able to obtain the necessary permits, with EPA as the
permitting authority for GHG emissions.
In view of the need for prompt action to eliminate or significantly
limit any time period during which certain GHG sources are precluded
from constructing or modifying because no entity has the authority to
issue them permits, we intend to finalize this rulemaking action on or
about December 1, 2010, and we propose in this rulemaking to give
states a deadline of 12 months from the date we finalize to submit
their corrective SIP revision. However, we are also proposing to
authorize states to accept a shorter deadline, as short as three weeks
from the date we finalize. If any State is not able to submit a
corrective SIP revision by its deadline, then EPA, by virtue of the
authority of the FIP provisions under CAA section 110(c), will
immediately make a finding that the State has failed to submit the
required SIP revision and will immediately promulgate the FIP.
Some states may already be in the process of developing the legal
authority needed and may be able to submit a SIP revision sooner than
December 2010. EPA encourages states to take action as expeditiously as
possible and will assist states as much as possible. Therefore, for
each State for which EPA is proposing a SIP Call, it is possible that
by January 2, 2011, when certain GHG sources in the State may be
required to obtain PSD permits, the State would have the authority in
place to act on the sources' permit applications. The availability of
this authority to regulate GHGs would depend on whether the State
submits a SIP revision before EPA finalizes this action or,
alternatively, on which deadline the State receives for the corrective
SIP submittal.
We ask that, within the comment period for this action, each of the
states listed in table IV-1 confirm to EPA that its SIP does not apply
the PSD program to GHG-emitting sources. We also ask that within this
comment period, every other State in the nation with an approved SIP
(see table IV-2) review its SIP and inform EPA if its SIP does not
apply the PSD program to GHG-emitting sources. Further, we ask that the
states (see table IV-1) for which we are proposing a SIP Call identify
the deadline--between 3 weeks and 12 months from the date of signature
of the final SIP Call--that they would accept for submitting their
corrective SIP revision. For example, assuming that, as we anticipate,
this rulemaking is signed in final form by December 1, 2010, a State
may specify that it would accept a SIP submittal deadline that falls
between December 22, 2010, and December 1, 2011, inclusive.
III. Background
A. CAA and Regulatory Context
EPA described the relevant background information in the Tailoring
Rule. Knowledge of this background information is presumed and will be
only briefly summarized here.
1. SIP PSD Requirements
Under the CAA PSD requirements, a new or existing source that emits
or has the potential to emit ``any air pollutant'' in the amounts of
either 100 or 250 tons per year (tpy), depending on the source
category, cannot construct or modify unless it first obtains a PSD
permit that, among other things, imposes emission limitations that
qualify as BACT. CAA sections 165(a)(1), 165(a)(4), 169(1).
Longstanding EPA regulations have interpreted the term ``any air
pollutant'' narrowly so that only emissions of any ``regulated NSR
pollutant'' trigger PSD. 40 CFR 51.166(j)(1), 52.21(j)(2). The term
``regulated NSR pollutant'' is defined to include the following four
classes of air pollutants:
(i) Any pollutant for which a NAAQS has been promulgated;
(ii) any pollutant subject to an NSPS promulgated under CAA section
111;
(iii) any pollutant subject to a standard promulgated under CAA
title VI; and
(iv) ``any pollutant that otherwise is subject to regulation under
the Act'' (excluding HAPs listed under CAA section 112). 40 CFR
51.166(b)(49), 52.21(b)(50).
The CAA contemplates that the PSD program be implemented in the
first instance by the states and requires that states include PSD
requirements in their SIPs. CAA section 110(a)(2)(C) requires that--
Each implementation plan * * * shall * * * include a program to
provide for * * * regulation of the modification and construction of
any stationary source within the areas covered by the plan as
necessary to assure that national ambient air quality standards are
achieved, including a permit program as required in part[] C * * *
of this subchapter.
CAA section 110(a)(2)(J) requires that--
Each implementation plan * * * shall * * * meet the applicable
requirements of * * * part C of this subchapter (relating to
significant deterioration of air quality and visibility protection).
CAA section 161 provides that--
Each applicable implementation plan shall contain emission
limitations and such other measures as may be necessary, as
determined under regulations promulgated under this part [C], to
prevent significant deterioration of air quality for such region * *
* designated * * * as attainment or unclassifiable.
These provisions, read in conjunction with the PSD applicability
provision--which, as noted above, applies, by its terms, to ``any air
pollutant,'' and which EPA has, through regulation, interpreted more
narrowly as any ``NSR regulated pollutant''--and read in conjunction
with other provisions, such as the BACT provision under CAA section
165(a)(4), mandate that SIPs include PSD programs that are applicable
to, among other things, any air pollutant that is subject to
regulation, including, as discussed below, GHGs on and after January 2,
2011.\8\
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\8\ In the Tailoring Rule, we noted that commenters argued, with
some variations, that the PSD provisions applied only to NAAQS
pollutants, and not GHGs, and we responded that the PSD provisions
apply to all pollutants subject to regulation, including GHGs. See
75 FR 31560-62, ``Prevention of Significant Deterioration and Title
V GHG Tailoring Rule: EPA's Response to Public Comments,'' May 2010,
pp. 38-41. We maintain our position that the PSD provisions apply to
all pollutants subject to regulation, and we incorporate by
reference our discussion of this issue in the Tailoring Rule.
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A number of states do not have PSD programs approved into their
SIPs. In those states, EPA's regulations at 40 CFR 52.21 govern, and
either EPA or the State as EPA's delegatee acts as the permitting
authority. On the other hand, most states have PSD programs that have
been approved into their SIPs, and these states implement their PSD
programs and act as the permitting authority. These approved SIPs are
discussed in more detail below.
2. Recent EPA Regulatory Action Concerning PSD Requirements for GHG-
emitting Sources
By notice dated December 15, 2009, pursuant to CAA section 202(a),
EPA issued, in a single final action, two findings regarding GHGs that
are commonly referred to as the ``Endangerment Finding'' and the
``Cause or Contribute Finding.'' ``Endangerment and Cause or Contribute
Findings for Greenhouse Gases Under Section 202(a) of the Clean Air
Act,'' 74 FR 66496. In the Endangerment Finding, the Administrator
found that six long-lived and directly emitted greenhouse gases--carbon
dioxide (CO2), methane (CH4),
[[Page 53897]]
nitrous oxide (N2O), hydrofluorocarbons (HFCs),
perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--may
reasonably be anticipated to endanger public health and welfare. In the
Cause or Contribute Finding, the Administrator ``define[d] the air
pollutant as the aggregate group of the same six * * * greenhouse
gases,'' 74 FR 66536, and found that the combined emissions of this air
pollutant from new motor vehicles and new motor vehicle engines
contribute to the GHG air pollution that endangers public health and
welfare.
By notice dated May 7, 2010, EPA published what is commonly
referred to as the ``Light-Duty Vehicle Rule'' (LDVR), which for the
first time established Federal controls on GHGs emitted from light-duty
vehicles. ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324. In
its applicability provisions, the LDVR specifies that it ``contains
standards and other regulations applicable to the emissions of six
greenhouse gases,'' including CO2, CH4,
N2O, HFCs, PFCs, and SF6. 75 FR 25686 (40 CFR
86.1818-12(a)).
Shortly before finalizing the LDVR, by notice dated April 2, 2010,
EPA published a notice commonly referred to as the Johnson Memo
Reconsideration, which interpreted the term ``subject to regulation,''
a term that is one of the regulatory triggers for PSD applicability.\9\
The Johnson Memo Reconsideration concluded that for GHGs, promulgation
of the LDVR would trigger PSD applicability for GHG-emitting sources on
or after January 2, 2011, which according to EPA is the date upon which
the LDVR takes effect.
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\9\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs,'' 75 FR 17004
(finalizing EPA's response to a petition for reconsideration of
``EPA's Interpretation of Regulations that Determine Pollutants
Covered by Federal Prevention of Significant Deterioration (PSD)
Permit Program'' (commonly referred to as the ``Johnson Memo''),
December 18, 2008).
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By notice dated June 3, 2010, EPA published what is commonly
referred to as the ``Tailoring Rule,'' \10\ which limits the
applicability of PSD through a multi-step phase-in approach to only the
highest-emitting GHG-emitting sources for a specified period of time,
and not all GHG-emitting sources at the 100/250-tpy statutory
thresholds. The Tailoring Rule established the first two steps of the
approach, which take effect on January 2, 2011, and July 1, 2011,
respectively. In the Tailoring Rule, EPA codified the Johnson Memo
Reconsideration interpretation of the term ``subject to regulation''
and added a further interpretation of that term designed to expedite
the adoption of the phase-in approach for PSD permitting for GHGs by
the states into their SIPs. In addition, in the Tailoring Rule, EPA
identified the air pollutant that, if emitted or potentially emitted by
the source in excess of specified thresholds, would subject the source
to PSD requirements, as the aggregate of the six GHGs, again,
CO2, CH4, N2O, HFCs, PFCs, and
SF6. The Tailoring Rule further provided that for purposes
of determining whether the GHGs emitted (or potentially emitted)
exceeded the specified thresholds, the amount of the GHGs must be
calculated first on a mass emissions basis and then on a carbon dioxide
equivalent (CO2e) basis. With respect to the latter,
according to the rule, ``PSD * * * applicability is based on the
quantity that results when the mass emissions of each of these [six]
gases is multiplied by the Global Warming Potential (GWP) of that gas,
and then summed for all six gases.'' 75 FR 31518. In the Tailoring
Rule, we asked states to submit to us letters within 60 days of
publication describing how they intended to incorporate into their SIPs
the limitations on PSD applicability included in the rule's phase-in
approach.
---------------------------------------------------------------------------
\10\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514 (June 3,
2010).
---------------------------------------------------------------------------
Further information on the Endangerment and Cause or Contribute
Findings, the LDRV, the Johnson Memo Reconsideration, and the Tailoring
Rule is contained in the Tailoring Rule.
3. SIP Inadequacy and Corrective Action
The CAA provides a mechanism for the correction of flawed SIPs,
under CAA section 110(k)(5), which provides:
(5) Calls for plan revisions
Whenever the Administrator finds that the applicable
implementation plan for any area is substantially inadequate to * *
* comply with any requirement of this Act, the Administrator shall
require the State to revise the plan as necessary to correct such
inadequacies. The Administrator shall notify the State of the
inadequacies and may establish reasonable deadlines (not to exceed
18 months after the date of such notice) for the submission of such
plan revisions.
This provision by its terms authorizes the Administrator to ``find[]
that [a SIP] * * * is substantially inadequate to * * * comply with any
requirement of this Act,'' and, based on that finding, to ``require the
State to revise the [SIP] * * * to correct such inadequacies.'' This
latter action is commonly referred to as a ``SIP Call.'' In addition,
this provision provides that EPA must notify the State of the
substantial inadequacy and authorizes EPA to establish a ``reasonable
deadline[] (not to exceed 18 months after the date of such notice)''
for the submission of the corrective SIP revision.
If the State fails to submit the corrective SIP revision by the
deadline, CAA section 110(c) authorizes EPA to ``find[] that [the]
State has failed to make a required submission.'' CAA section
110(c)(1)(A). Once EPA makes that finding, CAA section 110(c)(1)
requires EPA to ``promulgate a Federal implementation plan at any time
with 2 years after the [finding] * * * unless the State corrects the
deficiency, and [EPA] approves the plan or plan revision, before [EPA]
promulgates such [FIP].''
B. State PSD SIPs
1. SIP PSD Applicability Provisions
As noted earlier in this preamble, most states have approved PSD
SIPs. Most of those SIPs identify the pollutants addressed under their
PSD program as any ``regulated NSR pollutant.'' This definition covers
any ``pollutant subject to regulation'' and therefore, by its terms, in
effect is automatically updating and needs no revision in order to
cover pollutants that become subject to regulation under the CAA. As a
result, these provisions cover GHG emissions when they become subject
to regulation under other provisions of the CAA. See 40 CFR
52.21(b)(50).
However, EPA has become aware that a minority of approved SIPs fail
to include this broad approach to identifying pollutants subject to PSD
and instead simply list the individual pollutants by name. These SIPs
do not identify GHGs as among the pollutants addressed under their PSD
program. As a result, these applicability provisions, by their terms,
do not appear to apply the PSD requirements to sources of GHGs when
GHGs become ``subject to regulation'' under the CAA on January 2, 2011.
In addition, the PSD SIP applicability provisions of one State that
we are aware of, Connecticut, explicitly excludes CO2 as an
``air pollutant,'' so that CO2 is not subject to PSD
requirements.
2. Other Relevant State Law Provisions
Some states may have other State laws, including other SIP
provisions that bear upon the applicability of their PSD programs to
GHG-emitting sources.
First, some states may have in their SIPs some sort of ``general
authority clause'' that affirms the State's legal authority to issue,
and enforce
[[Page 53898]]
compliance with, permits that are consistent with Federal requirements.
If one of the states listed in table IV-1 of this preamble as having a
SIP that does not explicitly apply PSD to GHG emitters nevertheless has
such a ``general authority clause,'' then the SIP, read as a whole, may
be considered to apply PSD to GHG sources.
For an example of the type of ``general authority clause'' that may
have this effect, we refer to correspondence between the California Bay
Area Air Quality Management District (BAAQMD) and EPA Region IX that is
included in the docket for this rulemaking. In a letter dated October
28, 2009, the BAAQMD proposed to exercise general authority in order to
issue air permits to sources of PM2.5 even though its air
permit regulations did not contain specific provisions for
PM2.5 emissions. Under the proposed approach, with which EPA
concurred, BAAQMD exercised general authority under the administrative
requirements within its air permit regulations, which provide that the
Air Pollution Control Officer ``may impose any permit condition that he
deems reasonably necessary to insure compliance with Federal or
California law or District regulations * * *.'' See Regulation 2-1-403
included in the docket for this rulemaking.
Second, some states may have, in their SIPs, statutes, or
constitutions, a provision that precludes ``forward adoption,'' that
is, that prevents the State law from incorporating by reference or
otherwise adopting any requirements not specifically adopted by the
State legislature or other State authority. In particular, some states
may include a SIP PSD applicability provision that incorporates by
reference (IBR) our Federal PSD rule at 40 CFR 52.21--including the
definition of ``regulated NSR pollutant''--but that further provides
that this IBR is not ``rolling'' and therefore is limited to only
pollutants identified as regulated NSR pollutants as of the date the
State adopted the PSD provision. Any of these provisions could limit
the SIP PSD applicability rule to only the pollutants that were
regulated as of the time the State adopted the PSD applicability rule,
which means the SIP PSD program would not cover GHG-emitting sources
until the State took specific action to that effect.
IV. Proposed Action: Finding of Substantial Inadequacy and SIP Call
A. Introduction
Beginning on January 2, 2011, certain stationary sources that
construct or undertake modifications will become subject to the CAA
requirement to obtain a PSD permit for their GHG emissions. This is
because of the following CAA statutory and EPA regulatory requirements:
Under CAA sections 165(a) and 169(1), as interpreted through
longstanding EPA regulations, PSD applies to sources that emit
specified amounts of ``regulated NSR pollutants,'' which include
specified air pollutants as well any other ``[air] pollutant'' that is
``subject to regulation.'' 40 CFR 51.166(j)(1), (b)(49)(iv). By notice
dated May 7, 2010, EPA promulgated the Light-Duty Vehicle Rule (LDVR),
which establishes requirements for GHGs. 75 FR 25324. By the terms of
the LDVR, these emission limits take effect on January 2, 2011. The
LDVR identified the GHGs to which it applies as a single air pollutant
that consists of CO2, CH4, N2O, HFCs,
PFCs, and SF6. The LDVR followed EPA's Endangerment and
Cause or Contribute Findings, issued by notice dated December 15, 2009,
by which EPA found that GHGs--defined to include the same six
constituents--may reasonably be anticipated to endanger public health
and welfare. By notice dated April 2, 2010, EPA promulgated the Johnson
Memo Reconsideration. 75 FR 17004. In this action, EPA made clear that
the regulation of GHGs by the LDVR will trigger the applicability of
PSD requirements to GHG-emitting stationary sources as of January 2,
2011, because GHGs will become ``subject to regulation'' through the
LDVR. By notice dated June 3, 2010, EPA promulgated the Tailoring Rule,
which narrows PSD applicability to specified GHG-emitting sources on a
specified phase-in schedule and makes clear that GHGs--defined as the
same single pollutant, with six constituent gases, as described in the
LDVR--are the ``[air] pollutant'' to which PSD requirements apply. 75
FR 31514. Pursuant to the Tailoring Rule, PSD permitting requirements
for construction or modification will apply to certain GHG-emitting
stationary sources beginning on January 2, 2011, for the first step of
the Tailoring Rule, and beginning on July 1, 2011, for the second step
of the Tailoring Rule.
A number of states do not have an approved PSD SIP; as a result, in
these states \11\ the applicable regulatory authority is EPA's
regulations, found in 40 CFR 52.21, which constitute a FIP. For sources
in these states, either the EPA Regional Office or the State acting as
EPA's delegatee is the permitting authority. Because EPA's regulations
apply directly, sources in these states that emit GHGs will become
subject to PSD for their GHG emissions, to the extent provided under
the Tailoring Rule, on January 2, 2011. These sources will be able, on
and after January 2, 2011, to apply for and receive in due course their
PSD permits either from EPA directly or from those State permitting
authorities acting on EPA's behalf.
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\11\ In the following listed State or local jurisdictions, as
well as in all Indian country, EPA is the PSD permitting authority,
implementing the Federal PSD regulation at 40 CFR 52.21: American
Samoa; Arizona (some areas); California (most areas); District of
Columbia; Guam; Massachusetts; New Jersey; New York; Northern
Mariana Islands; Puerto Rico; Trust Territories; and the Virgin
Islands. In a smaller number of areas, listed as follows, the State
or local permitting authority is delegated at least partial
authority by EPA to implement the Federal PSD regulation: Arizona
(some areas); California (some areas); Hawaii; Illinois; Minnesota;
Nevada (most areas); Pennsylvania (some areas); and Washington.
---------------------------------------------------------------------------
All of the other states administer their PSD program through an
approved SIP and, as a result, they or their local entities are the PSD
permitting authority. This rulemaking concerns whether those approved
SIP PSD programs include GHG-emitting sources and, for those that do
not, the steps that EPA will take to assure that a PSD permit program
that includes GHGs is in place.
B. States With SIP PSD Applicability Provisions That Do Not Appear To
Apply to GHG-Emitting Sources
Our review of the SIPs and other authorities, as well as
consultation with states, as described further in section IV.D of this
preamble and the Technical Support Document included in the docket for
this rulemaking, indicates that for 13 of the states with approved PSD
SIPs, the PSD programs of their SIPs do not appear to apply to GHG-
emitting sources. These states are listed in table IV-1, ``States with
SIPs that Do Not Appear to Apply PSD to GHG Sources (Presumptive SIP
Call List).'' In a number of these SIPs, the PSD applicability
provisions do not mirror EPA's regulatory provisions by applying PSD
requirements to sources of any air pollutant ``subject to regulation'';
instead, the PSD applicability provisions specifically list the air
pollutants to which the PSD program applies and do not include GHGs on
that list. As a result, the PSD applicability provisions do not, by
their terms, cover GHG-emitting sources.
In addition, Connecticut's SIP appears by its terms to preclude the
application of PSD to GHG-emitting sources.
Further, some of these states have SIP PSD provisions that by their
terms apply PSD to regulated NSR pollutants, or
[[Page 53899]]
have a substantially similarly phrased requirement, but also have State
constitutional or other statutory or SIP provisions that appear to have
the effect of limiting PSD applicability to air pollutants identified
on a certain date. Therefore, State law, read as whole, would not
appear to apply PSD requirements to GHGs until the appropriate State
authority takes action to specifically subject PSD to GHGs, and the
State has not yet done so.
We conclude that the states with SIPs or State law with these
provisions do not appear to apply the PSD program to GHG-emitting
sources, and we are including them in table IV-1. We recognize that
stakeholders may have other interpretations of these provisions, and we
solicit comments from stakeholders on their interpretations. In
addition, some of these SIPs may include what we will refer to as a
``general authority provision,'' which is a provision for the State to
issue PSD permits that comply with EPA requirements, as described
earlier in this preamble. If so, it is possible that these provisions
could be interpreted to authorize the State in some cases to issue to
GHG sources PSD permits that incorporate EPA's regulatory requirements,
as found in 40 CFR 51.166. As a result, we consider table IV-1 to be a
presumptive SIP Call list.
Table IV-1--States with SIPs that Do Not Appear to Apply PSD to GHG
Sources (Presumptive SIP Call List)
------------------------------------------------------------------------
State (or area) EPA region
------------------------------------------------------------------------
Alaska........................................... X
Arizona: Pinal County; Rest of State (Excludes IX
Maricopa County, Pima County, and Indian
Country).
Arkansas......................................... VI
California: Sacramento Metropolitan AQMD......... IX
Connecticut...................................... I
Florida.......................................... IV
Idaho............................................ X
Kansas........................................... VII
Kentucky: Jefferson County; Rest of State........ IV
Nebraska......................................... VII
Nevada: Clark County............................. IX
Oregon........................................... X
Texas............................................ VI
------------------------------------------------------------------------
C. States With SIP PSD Applicability Provisions That Do Appear To Apply
to GHG-Emitting Sources
On the other hand, as noted above, for most of the states with
approved SIPs, those SIPs generally apply PSD to sources of any
``regulated NSR pollutant,'' and we have not received information
indicating that the State law includes other provisions that may have
the effect of precluding PSD from applying to GHG-emitting sources. As
a result, EPA is including a list of states with presumptively adequate
SIPs in table IV-2, ``States with SIPs That Appear To Apply PSD to GHG
Sources (Presumptive Adequacy List).''
Table IV-2--States With SIPs That Appear To Apply PSD to GHG Sources
(Presumptive Adequacy List)
------------------------------------------------------------------------
State (or area) EPA region
------------------------------------------------------------------------
Alabama: Jefferson County; Huntsville; Rest of IV
State.
California: Mendocino County AQMD; Monterey Bay IX
Unified APCD; North Coast Unified AQMD; Northern
Sonoma County APCD.
Colorado......................................... VIII
Delaware......................................... III
Georgia.......................................... IV
Indiana.......................................... V
Iowa............................................. VII
Louisiana........................................ VI
Maine............................................ I
Maryland......................................... III
Michigan......................................... V
Mississippi...................................... IV
Missouri......................................... VII
Montana.......................................... VIII
New Hampshire.................................... I
New Mexico: Albuquerque; Rest of State........... VI
North Carolina: Forsythe County; Mecklenburg; IV
Western NC; Rest of State.
North Dakota..................................... VIII
Ohio............................................. V
Oklahoma......................................... VI
Pennsylvania: All except Allegheny County........ III
Rhode Island..................................... I
South Carolina................................... IV
South Dakota..................................... VIII
Tennessee: Chattanooga; Nashville; Knoxville; IV
Memphis; Rest of State.
Vermont.......................................... I
Virginia......................................... III
[[Page 53900]]
West Virginia.................................... III
Wisconsin........................................ V
Wyoming.......................................... VIII
Utah............................................. VIII
------------------------------------------------------------------------
We have developed these two lists of states--one listing states
whose PSD program appears to not apply to GHG-emitting sources and one
listing states whose program appears to cover such sources--based on
our own preliminary research, consultation with states, and review of
the 60-day letters, described earlier in this preamble, submitted thus
far by states in response to the Tailoring Rule. As explained elsewhere
in this preamble, we ask that each State with an approved SIP submit
information during the comment period for this rulemaking pertinent to
whether its SIP--including the PSD applicability provisions and any
other relevant provisions--covers GHG-emitting sources.
D. Proposed Finding of SIP Substantial Inadequacy and SIP Call;
Solicitation of Comment
For each of the states listed in table IV-1 of this preamble, we
propose to issue a finding that the SIP is ``substantially inadequate *
* * to * * * comply with [the PSD] requirement[s]'' and to ``require
the State to revise the plan as necessary to correct such
inadequacies,'' i.e., to issue a SIP Call. CAA section 110(k)(5). For
each of these states, the SIP appears to not apply the PSD program to
GHG-emitting sources.
In consultation with the affected states, EPA compiled relevant
provisions of the affected States' SIPs and other State law into a
Technical Support Document for this rulemaking. The Technical Support
Document, which can be found in the docket for this rulemaking,
presents the basis for EPA's proposed finding of substantial inadequacy
for the states listed in table IV-1.
As discussed elsewhere in this preamble, we invite comment on this
proposal. For any State listed in table IV-1, if we do not receive any
further information from the State or other commenters, we expect to
finalize our proposed finding and SIP Call. Also for any State listed
in table IV-1, if we do receive additional information that our
interpretation of these provisions is incorrect or that the SIP
includes a general authority provision so that, read as a whole, the
SIP applies the PSD program to GHG sources, we will not finalize our
proposed finding and SIP Call.
Our basis for the proposed finding--and the proposed SIP Call that
is based on this finding--is that CAA section 110(k)(5) provides that
EPA may make the finding when the SIP is ``substantially inadequate * *
* to * * * comply with any requirement of [the CAA],'' and this
includes the PSD requirements. As discussed earlier in this preamble,
SIPs are required to include PSD programs that apply to sources that
emit pollutants subject to regulation; as a result, the SIPs at issue
merit a finding of substantial inadequacy because they fail to apply
the PSD program to GHG-emitting sources on and after January 2, 2011.
For all other states with approved PSD SIPs--which are the ones
listed in table IV-2--we solicit comment on whether their SIPs, read as
a whole, apply the PSD program to GHG-emitting sources. If, on the
basis of additional information, we conclude that their PSD programs do
not apply to GHG-emitting sources, we will issue a final finding of
substantial inadequacy and SIP Call on the same schedule as that for
any of the states for which we are issuing a proposed finding and SIP
Call.
We recognize that PSD requirements will not apply to GHG-emitting
sources until January 2, 2011, but that for any State for which we
finalize a finding of substantial inadequacy and a SIP Call, our plan
is to do so approximately one month in advance of that date. EPA
believes this timing is justified. SIPs must include, at least a month
prior to January 2, 2011, a provision applying PSD requirements to GHG-
emitting sources as of January 2, 2011, in order to give sources notice
that the requirement applies and that the State will act as the
permitting authority. We recognize that as a practical matter, some
states may wish that we impose a FIP effective as of January 2, 2011,
in order to avoid any period of time when the GHG-emitting sources
identified in the Tailoring Rule as subject to PSD are unable to obtain
a permit due to lack of a permitting authority. We cannot impose a FIP
until we have first finalized the SIP Call and given the State a
reasonable period of time to make the corrective SIP submission. EPA
strongly believes that this necessarily entails, for those states,
finalizing the SIP Call prior to January 2, 2011.
After the close of the comment period for this proposed action, we
will review all comments. If we determine that the PSD SIP for any
State either by its terms does not apply to sources of GHGs or has
conflicting provisions that create ambiguity as to whether it applies
to sources of GHGs (such as an applicability provision that explicitly
excludes GHG sources, coupled with a general-authority provision that
could be read to authorize permitting of GHG sources), then, for that
State, we will finalize the finding that the SIP is ``substantially
inadequate * * * to * * * comply with [the PSD] requirement[s].'' At
the same time, we will finalize a SIP Call for that State. We will make
the finding of substantial inadequacy, notify the State that we have
made the finding, and issue the SIP Call in a final action that we
intend to sign on or about December 1, 2010, and submit for publication
in the Federal Register as soon as possible thereafter. We will notify
the State of the finding of substantial inadequacy by letter and by
posting the signed action on our Web Site. In view of the urgency of
the task, which is to ensure that a PSD permitting authority for
affected GHG sources is in place by January 2, 2011, we propose to give
the final SIP Call an effective date of its publication date. We
recognize that this process is highly expedited, but we believe that
this is essential to maximize our and the States' opportunity to put in
place a permitting authority to process PSD permit applications
beginning on January 2, 2011, without which sources may be unable to
proceed with plans to construct or modify. Commenters should feel free
to advise us if they believe a different approach can achieve this
goal.
[[Page 53901]]
E. Comment Period
In order to deepen our understanding of what provisions are in the
relevant PSD SIPs, and how they are to be interpreted, as well as to
ensure that we have a comprehensive picture of all the SIPs in this
regard, we ask each State to give us the following information by the
close of the comment period on this rule:
1. States With SIP PSD Applicability Provisions That Do Not Appear To
Include GHGs
We ask that each of the states listed in table IV-1 of this
preamble--for which we have information that their SIP PSD
applicability provisions do not include GHGs, and for which we propose
a finding of substantial inadequacy and a SIP Call--provide the
following information by the end of the comment period for this action:
(a) Confirm, with citations and a copy of the relevant language,
that the SIP PSD applicability provisions do not explicitly include GHG
sources;
(b) Identify and provide a copy of any provision that specifically
precludes PSD applicability for GHG sources;
(c) Identify and provide a copy of any provision of State
constitution or other law, including the SIP, that may be read to limit
the applicability of the PSD program to pollutants identified at a
certain point in time, and therefore not to GHGs.
(d) Indicate, with citations and a copy of the relevant language,
if any, whether the SIP includes general authority for the State to
issue PSD permits that meet EPA requirements;
(e) Indicate, with citations and a copy of the relevant language,
any other provisions of the SIP or State law that may bear on the
applicability of the PSD program to GHG-emitting sources.
(f) Indicate the State's interpretation as to whether the SIP, read
as a whole, does or does not apply the PSD program to GHG sources or
authorize the State to issue PSD permits for GHG sources that meet EPA
requirements. This statement should be made by the commissioner or
general counsel of the State environmental agency, or by the
counterpart at the local or tribal level, or by the State Attorney
General.
(g) If the SIP, read as a whole, does not apply the PSD program to
GHG sources or authorize the issuance of permits to GHG sources,
indicate whether the State plans to develop adequate authority to apply
the PSD program to GHG sources and to submit it to EPA as a SIP
revision by December 1, 2010, which is shortly before the date on
which, as discussed below, EPA intends to finalize its finding of
inadequacy and finalize the SIP Call.
As discussed later in this preamble, we also ask these states to
inform us, by the end of the comment period, of the period of time (as
bounded in this preamble) that they would accept as the deadline for
submittal of their SIP revisions in response to a SIP Call.
2. All Other States With Approved SIPs
We request that each State with an approved PSD SIP (see table IV-
2) that is not also one of the 13 States for which we propose a SIP
Call review its PSD provisions to confirm that it applies the PSD
program to GHG sources. We request that each of these states inform us
if it has a SIP PSD applicability provision that does not by its terms
apply to pollutants ``subject to regulation'' or similar language, or
otherwise apply to GHG sources. In addition, we request that each of
these states inform us if it has another State law provision or legal
interpretation that may have the effect of limiting PSD applicability
to air pollutants covered by EPA's PSD program as of a certain date,
and therefore does not include GHGs. For any State whose PSD program,
for any of these reasons, may not apply to GHG-emitting sources, we
request the same information described in section IV.E.1 of this
preamble as soon as possible during the comment period. Once we receive
this information, if we believe it shows that the State's SIP PSD
program does not apply to GHG sources, we will finalize a finding of
substantial inadequacy and a SIP Call on the same schedule as any of
the states for which we are proposing a finding and SIP Call.
F. State Actions
1. State Submission of SIP Revision Prior to Final SIP Call
If a State for whose SIP we propose a finding of substantial
inadequacy submits a SIP revision by December 1, 2010, that purports to
correct that inadequacy, we will not finalize the finding or SIP Call
for that State. Rather, we will take action on their SIP submission
promptly, as discussed below.
2. State Response to SIP Call
a. Timing of State Submittal
Under CAA section 110(k)(5), in notifying the State of the finding
of substantial inadequacy and issuing the SIP Call, we ``may establish
reasonable deadlines (not to exceed 18 months after the date of such
notice) for the submission of such plan revisions.'' We propose to
allow the State 12 months from the date of the notice, which will be
the date on which we sign the final action, to submit the SIP revision,
unless, during the comment period, the State expressly advises that it
would not object to a shorter period--as short as 3 weeks from the date
of signature of the final rule--in which case we will establish the
shorter period as the deadline. As stated earlier in this preamble, EPA
intends to finalize the SIP Call on or about December 1, 2010. If the
Administrator signs the notice on that date, the earliest possible
deadline would be December 22, 2010. The purpose of establishing the
shorter period as the deadline--assuming that State advises us that it
does not object to that shorter period--is to accommodate states that
wish to ensure that a FIP is available as, in effect, a backstop to
ensure that there is no gap in PSD permitting. If the State does not
advise us that it does not object to a shorter deadline, then the 12-
month deadline will apply.
It must be emphasized that for any State that receives a deadline
after January 2, 2011, the affected GHG-emitting sources in that
State--which are those larger GHG-emitters identified in the Tailoring
Rule--will be unable to receive a federally approved permit authorizing
construction or modification. Therefore, after January 2, 2011, these
sources may not lawfully be able to construct or modify until the date
that EPA either approves the SIP submittal or promulgates a FIP.
EPA proposes that this 3-week-to-12-month time period, although
expedited, meets the CAA section 110(k)(5) requirement as a
``reasonable deadline[]'' and we welcome comment on this
interpretation. The term ``reasonable deadline[],'' as it appears in
that provision, is not defined. We interpret it to mean a time period
that is sensible or logical, based on all the facts and circumstances.
Those facts and circumstances include (i) the State SIP development and
submission process, (ii) the imperative to minimize the period when
sources will be subject to PSD but not have available a PSD permitting
authority to act on their permit application, and therefore will be
unable to construct or modify; and (iii) the preferences of the State.
The following elaborates on those three facts and circumstances.
First, although the 12-month period is consistent with the time
period required for SIP revisions in at least one previous SIP call
that EPA issued, the NOx SIP
[[Page 53902]]
Call,\12\ we recognize that a period shorter than 12 months is
expedited in light of the time involved in most State SIP development
and submission processes. In particular, we recognize that some states
may need to undertake full-blown rulemaking actions, which may
typically be time-consuming, and we acknowledge that some states may
need to change their statutory provisions, which may typically be even
more time-consuming. Even so, we understand that at least some states
have emergency processes that may be used to significantly expedite
action. Although this is a matter of State process, we are prepared, as
described elsewhere in this preamble, to work with the states to
develop expedited methods for developing, processing, and submitting
SIP revisions.
---------------------------------------------------------------------------
\12\ ``Finding of Significant Contribution and Rulemaking for
Certain States in the Ozone Transport Assessment Group Region for
Purposes of Reducing Regional Transport of Ozone; Rule.'' 63 FR
57356 (October 27, 1998).
---------------------------------------------------------------------------
Second, the need to minimize the period when sources may be unable
to construct or modify due to the lack of regulatory authority to act
on their permit applications is an essential consideration. A shorter
period for SIP submittal means that either the State, through the SIP
revision that it submits on an expedited basis in light of this tight
schedule, or EPA, through a FIP, will become the permitting authority
sooner and will then be able to act on permit applications and issue
permits that allow new construction and modification of existing
plants. The purposes of the PSD provisions include both the protection
of the environment and the promotion of economic development, see,
e.g., CAA section 160(3)-(4), and the D.C. Circuit has held that the
terms of the PSD provisions should be interpreted with these goals in
mind. New York v. EPA, 413 F.3d 3, 23(D.C. Cir.), rehearing en banc
den., 431 F.3d 801 (2005). Accordingly, determining a ``reasonable
deadline[]'' for the submittal of a PSD SIP revision should account for
the need to promote economic development by assuring the availability
of a permitting authority to process permit applications.
Finally, the preference of the State is important because the
deadline for submittal of the corrective SIP revision in response to a
SIP Call acts as a burden on the State. If the State does not object to
an earlier deadline under which it must operate--which, in a sense, is
contrary to the State's self-interest because an earlier deadline
typically increases burdens--then that is an indication of the
reasonableness of the deadline.
We suggest the following model language that a State wishing to
indicate that it does not object to a deadline shorter than 12 months
could consider using in its response to our request for comments. Of
course, the State is not obligated to use this specific language, and
we present it solely for the convenience of the states:
U.S. EPA has proposed a finding of substantial inadequacy and
SIP Call under Clean Air Act section 110(k)(5) concerning the
State's SIP PSD applicability provisions. Further, U.S. EPA has
proposed a deadline for the State's submittal of a corrective SIP
revision. U.S. EPA has requested the State's comments on the
proposed deadline. In light of EPA's perception of the importance of
having in place as soon as possible a PSD permitting authority for
any GHG-emitting sources that may be subject to PSD requirements,
the State does not object to U.S. EPA's establishment of a deadline
of [identify the deadline].
b. Substance of State Submittal
(i) Addition of GHGs to List of Pollutants Subject to PSD
We propose to make a finding of substantial inadequacy and issue a
SIP Call for each State whose SIP fails to apply the PSD program to
GHG-emitting sources. Accordingly, for the State to correct its SIP,
the State must submit a SIP revision that applies PSD to GHG sources.
For those states whose SIP applies PSD to listed air pollutants, the
State may accomplish this correction in at least two different ways.
First, the State may revise its SIP so that instead of applying PSD to
sources of individually listed pollutants, the SIP applies PSD to
sources that emit any ``regulated NSR pollutant.'' We recommend that
states follow this approach. It is consistent with our 2002 ``NSR
Reform'' rule. ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR); Final Rule and Proposed Rule,''
67 FR 80186, 80240 (December 31, 2001). In addition, it would resolve
any issues about whether the State has authority to issue permits for
sources of PM2.5 emissions, as well as permits for sources
of pollutants that EPA may subject to regulation for the first time in
the future. Secondly, and as an alternative, the State may retain its
approach of applying PSD to sources of individually listed pollutants
but submit a SIP revision that includes GHGs on that list of
pollutants. If a State chooses this second approach, we will approve
the SIP revision as SIP strengthening.
(ii) Definition and Calculation of Amount of GHGs
In adding GHGs to the list of pollutants subject to PSD
applicability, the State must define GHGs as a single pollutant that is
the aggregate of the group of six gases: CO2,
CH4, N2O, HFCs, PFCs, and SF6. As EPA
stated in the Tailoring Rule, ``[t]he final LDVR for GHGs specifies, in
the rule's applicability provisions, the air pollutant subject to
control as the aggregate group of the six GHGs * * *. Because it is
this pollutant that is regulated under the LDVR, it is this pollutant
to which PSD * * * appli[es].'' 75 FR 31528.
Although we propose to require that the State define GHGs as
described immediately above, we solicit comment on whether the State
may adopt a different definition that is at least as stringent, and, if
so, what such a definition might be. We caution that a definition that
includes more gases than the six identified above could prove to be
less stringent in certain ways because it could allow greater
opportunities for a source of different gases to net out of PSD.
We note that in this rulemaking, we are not addressing the issue of
accounting for emissions of GHGs from bioenergy and other biogenic
sources (which are generated during the combustion or decomposition of
biologically based material such as forest or agriculture products).
When we finalized the Tailoring Rule, we noted that EPA planned to seek
comment on how to address emissions of biogenic CO2 under
the PSD and title V programs through future action, such as a separate
Advance Notice of Proposed Rulemaking (ANPR) (75 FR at 31591). As a
first step, we recently issued a Call for Information (CFI) to solicit
public comment and data on technical issues that might be used to
consider biomass fuels and the emissions resulting from their
combustion differently with regard to applicability under PSD and with
regard to the BACT review process under PSD. See ``Call for
Information: Information on Greenhouse Gas Emissions Associated with
Bioenergy and Other Biogenic Sources,'' 75 FR 41173 (July 15, 2010).
Additional information on this CFI is available at http://www.epa.gov/climatechange/emissions/biogenic_emissions.html. In the
CFI we stated: ``In response to this Call for Information, interested
parties are invited to assist EPA in the following: (1) Surveying and
assessing the science by submitting research studies or other relevant
information, and (2) evaluating different accounting approaches and
options by providing policy analyses, proposed or published
methodologies, or other relevant information. Interested parties are
also invited to submit data or
[[Page 53903]]
other relevant information about the current and projected scope of GHG
emissions from bioenergy and other biogenic sources.'' 75 FR at 41174.
Without prejudging the outcome of the CFI process, EPA anticipates
that the comments we receive in response to the CFI, with regard to
applicability under PSD and with regard to the BACT review process
under PSD, will inform any subsequent actions to address applicability
of emissions of GHGs from bioenergy and other biogenic sources under
the PSD program.
(iii) Thresholds
For a State to correct its SIP, the State must submit a SIP
revision that applies PSD to GHG sources. Once a State applies the PSD
program to GHG-emitting sources, the State must determine the threshold
for emissions from those sources that will trigger PSD. In the
Tailoring Rule, EPA promulgated a determination that the CAA thresholds
of 100 or 250 tpy (depending on the source category) would not apply as
of January 2, 2011, or for a period of years thereafter, in light of,
in part, administrative concerns. Instead, EPA promulgated a phase-in
approach that limits PSD applicability to only the largest GHG emitting
sources for a period of time.
A State, in revising its SIP to apply PSD to GHG sources, may adopt
the Tailoring Rule phase-in approach into its SIP or it may adopt lower
thresholds, but if it adopts lower thresholds, it must show that it has
``adequate personnel [and] funding * * * to carry out,'' that is,
administer and implement, the PSD program with those lower thresholds,
in accordance with CAA section 110(a)(2)(E)(i).\13\
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\13\ We indicated in the Tailoring Rule (75 FR at 31525-26) that
a State may undertake a SIP action to either: (1) Revise its PSD
program, which already applies to GHG-emitting sources, in order to
implement the tailoring approach; or (2) revise its PSD program so
that it applies to GHG-emitting sources, in which case the State
must also establish its PSD applicability thresholds for PSD. This
rulemaking relates to the latter described SIP action.
---------------------------------------------------------------------------
In the Tailoring Rule, EPA adopted a CO2e metric and use
of short tons (as opposed to metric tons) for calculating GHG emissions
in order to implement the higher thresholds. 75 FR 31530, 31532. As
noted above, a State retains the authority to adopt lower thresholds
than in the Tailoring Rule in order to meet statutory requirements. As
a result, the states are not obligated to adopt the CO2e
metric or use of short tons; however, the State must assure that its
approach is at least as stringent as the thresholds in the Tailoring
Rule.
(iv) State Adoption of ``Regulated NSR Pollutants''
Beyond this, we encourage--but do not propose to require--the
states for which we propose a SIP Call to submit a SIP revision to
adopt the PSD applicability provision found in EPA regulations--which
is that PSD applies to ``regulated NSR pollutant[s],'' including any
air pollutant ``subject to regulation''--instead of simply adding GHGs
to the SIP's list of pollutants subject to PSD.
There are many advantages for a State to revise its SIP PSD
applicability provisions in the manner that we encourage. First, doing
so would more readily incorporate, for State law purposes, the phase-in
approach for PSD applicability to GHG sources that EPA has developed in
the Tailoring Rule and expects to develop further through additional
rulemaking. As explained in the Tailoring Rule, incorporating this
phase-in approach for State law purposes--including Steps 1 and 2 of
the phase-in as promulgated in the Tailoring Rule and additional steps
of the phase-in that EPA may promulgate in the future--can be most
readily accomplished through State interpretation of the ``subject to
regulation'' prong of the definition of ``regulated NSR pollutant.''
If, instead of adopting into its SIP the ``regulated NSR pollutant''
trigger for PSD applicability, the State simply adds GHGs to its list
of pollutants subject to PSD, then the SIP will not include the term
``subject to regulation'' and therefore may not include any vehicle or
``hook'' for the State to adopt by interpretation the current and any
future steps of the phase-in approach. As a result, the State may have
to adopt and submit for EPA approval additional SIP revisions to
incorporate the current and future steps of the phase-in approach.
There are other advantages to a State that adopts EPA's definition
of ``regulated NSR pollutant.'' The SIP would apply PSD to sources
emitting PM2.5, thereby resolving as well the problem that
some SIPs have of failing to cover PM2.5 for PSD purposes.
That is, many of the states for which we propose a SIP Call due to
their SIPs' failure to apply PSD to sources that emit GHGs also may
fail to apply PSD to sources that emit PM2.5.\14\ To this
point in time, this failure has not been a problem because we have
allowed the State to issue PSD permits for sources of PM2.5
emissions through what is commonly called EPA's ``1997 PM10
surrogate policy.'' Under the 1997 PM10 surrogate policy,
sources and permitting authorities satisfy the CAA requirements for
PM2.5 in PSD permits by applying the PM10
requirements as a surrogate for PM2.5. Each permit that
relies on our PM10 surrogate policy is subject to review as
to the adequacy of the presumption that the PM2.5
requirements are satisfied. However, we note that EPA has issued a
notice of proposed rulemaking to end the prospective use of the 1997
PM10 surrogate policy by the end of 2010 (75 FR 6827,
February 11, 2010). We are not at this time taking action with respect
to these SIPs on account of PM2.5, but we encourage states
to submit SIP revisions that apply PSD to sources of PM2.5.
---------------------------------------------------------------------------
\14\ Following a 1997 review of our national ambient air quality
standards (``NAAQS'') for particulate matter, we promulgated NAAQS
for fine particles (PM2.5). We then designated all areas
of the country as ``attainment,'' ``nonattainment,'' or
unclassifiable for the PM2.5 standards, which became
effective in April 2005. Pursuant to the CAA, States are obliged to
revise their PSD regulations to include the new PM2.5
standards.
---------------------------------------------------------------------------
In addition, the SIP would, in effect, automatically update the
State PSD program to apply PSD to any newly regulated pollutants and
thereby avoid recurrence of the present problem of a gap in the PSD
program coverage for newly regulated pollutants. Finally, State
adoption of EPA's definition of ``regulated NSR pollutant'' would allow
the SIP to mirror EPA regulations and the SIPs of most states, which
may promote consistency and ease administration.
Notwithstanding the advantages to a State of revising its SIP to
apply PSD to ``regulated NSR pollutants,'' we do not, at this time,
propose a finding that the SIP is substantially inadequate to comply
with a CAA requirement or propose to issue a SIP call that would
require a SIP revision that applies PSD to ``regulated NSR
pollutants.'' Instead, as noted above, our proposed finding and SIP
call are limited to the failure to apply PSD to GHG-emitting sources,
and the SIP revision may simply include GHGs on the State's list of
pollutants subject to PSD. We do not propose to require the ``regulated
NSR pollutant'' approach because that approach is not necessary to
correct the substantial inadequacy--which is the failure of the PSD SIP
to cover GHG sources--for which we propose to issue a SIP Call. Rather,
that substantial inadequacy may be corrected more narrowly by listing
GHGs.
3. General Authority Provision
As noted earlier in this preamble, some SIPs that apply PSD to
sources of specified pollutants, not including GHGs, may also include a
general authority provision that provides general authority to issue
PSD permits that meet EPA requirements. For states that include such
general authority, it
[[Page 53904]]
may be possible to read their SIPs as a whole to authorize the issuance
of PSD permits to GHG sources. In that case, EPA would not finalize a
finding of substantial inadequacy or a SIP Call for that State.
Even so, EPA encourages states with these SIP provisions to submit
a SIP revision that applies PSD to GHG-emitting sources. Such a SIP
revision would add clarity to the SIP and, in general, carry the
benefits described earlier in this preamble.
G. EPA Actions on SIP Submittals; Findings of Failure To Submit and
Promulgation of FIPs
1. Actions on SIP Submittals
As noted above, for any State for which EPA proposes a finding of
substantial inadequacy and SIP Call but that submits a SIP revision
before December 1, 2010, EPA will not issue a final finding of
substantial inadequacy or a SIP Call. Instead, EPA will take action on
the SIP submittal as quickly as possible.
By the same token, for any State for which EPA has issued a final
finding of substantial inadequacy and a SIP Call, if the State submits
the SIP revision within the submittal deadline, then EPA will not issue
a finding of failure to submit or promulgate a FIP. Instead, EPA will
take action on the SIP submittal as quickly as possible.
We reiterate and encourage states to keep in mind that PSD
applicability for certain GHG sources begins January 2, 2011. As such,
even states with proposed SIP revisions will not be able to issue
federally approved PSD permits for construction or modification to
affected sources until those revisions are approved. The affected
source would be able to receive a State-issued permit, but the lack of
a federally approved permit means that the source would not be in
accordance with Federal requirements if it constructed or modified. In
light of this potential for burden on the affected sources, we intend
to act on any SIP submittals that we receive as promptly as possible.
For example, upon request of the State, we will parallel-process
the SIP submittal. Under this approach, the State sends us the draft of
the SIP revision on which it plans to seek public comment at the State
level, in accordance with CAA section 110(a)(2), and we will publish a
proposed approval of that draft SIP revision. In addition, at the same
time the State solicits such public comment of its SIP revision at the
State level, we will initiate a separate public proceeding on our
proposed approval of the SIP revision at the Federal level. If,
subsequently, the SIP revision that the State adopts and submits to EPA
is substantially similar to the draft on which EPA solicited comment,
then EPA will proceed to take final action on the SIP submittal and
will not re-notice it for public comment. EPA has successfully employed
the parallel-processing approach in past rulemakings, and we believe
that to employ it in this process could significantly shorten the time
EPA needs to act on the SIP revision.
2. Findings of Failure To Submit and Promulgation of FIPs
If the State does not meet its SIP submittal deadline, we will
immediately issue a finding of failure to submit a required SIP
submission under CAA section 110(c)(1)(A) and immediately thereafter
issue a FIP. This timing for FIP promulgation is authorized under CAA
section 110(c)(1), which authorizes us to promulgate a FIP ``at any
time within 2 years after'' finding a failure to submit a required SIP
submission. We discuss our approach to the FIP in the companion notice
to this rulemaking concerning FIPs for failure to submit the required
PSD SIP revision.
3. Rescission of the FIP
After we have promulgated a FIP, it must remain in place until the
State submits a SIP revision and we approve that SIP revision. CAA
section 110(c)(1). Under the present circumstances, we will act on a
SIP revision to apply the PSD program to GHG sources as quickly as
possible and, upon request of the State, will parallel-process the SIP
submittal in the manner described earlier in this preamble. If we
approve such a SIP revision, we will, at the same time, rescind the
FIP. We discuss this approach in the companion notice to this
rulemaking concerning FIPs for failure to submit the required PSD SIP
revision.
H. Streamlining the State Process for SIP Development and Submittal
As stated earlier in this preamble, we recognize that the deadline
we are giving states to submit their SIP revisions is expeditious. EPA
understands that each State must determine whether its own regulatory
development process allows for streamlining, and we defer to the states
on the extent to which they may choose to streamline the process. Given
the exigencies, we believe a streamlining approach could be beneficial
to a State in meeting its deadline. We are prepared to work with the
states to develop methods to streamline the State administrative
process, although we recognize that the states remain fully in charge
of their own State processes. We solicit recommendations during the
comment period for ways to streamline the State process for adopting
and submitting these SIPs, and to streamline or simplify what is
required for the SIP submittal.
For example, we may streamline the process as it concerns public
hearing requirements. Many states require that the underlying State
regulation that the State intends to develop into the SIP submittal
undergo a public hearing. In addition, the CAA requires that the State
provide a public hearing on the proposed SIP submittal, under CAA
section 110(a)(2). EPA solicits public comment on whether it may,
consistent with the CAA, accept the public hearing that the State holds
on the underlying regulation as meeting the requirement for the hearing
on the SIP submittal, as long as the State provides adequate public
notice of the hearing, and EPA will not require a separate SIP hearing.
I. Primacy of the SIP Process
This proposal is secondary to our overarching goal, which is to
assure that in every instance, it will be the State that will be that
permitting authority. EPA continues to recognize that the states are
best suited to the task of permitting because they and their sources
have experience working together in the State PSD program to process
permit applications. EPA seeks to remain solely in its primary role of
providing guidance and acting as a resource for the states as they make
the various required permitting decisions for GHG emissions.
Accordingly, beginning immediately we intend to work closely with
the states--as we have already begun to do since earlier in the year--
to help them promptly develop and submit to us their corrective SIP
revisions that extend their PSD program to GHG-emitting sources.
Moreover, we intend to promptly act on their SIP submittals. Again,
EPA's goal is to have each and every affected State have in place the
necessary permitting authorities by the time businesses seeking
construction permits need to have their applications processed and the
permits issued--and to achieve that outcome by means of engaging with
the states directly through a concerted process of consultation and
support.
EPA is taking up the additional task of proposing this SIP Call and
the companion FIP action only because the Agency believes it is
compelled to do so by the need to assure businesses, to the maximum
extent possible and as
[[Page 53905]]
promptly as possible, that a permitting authority is available to
process PSD permit applications for GHG-emitting sources once they
become subject to PSD requirements on January 2, 2011.
In order to provide that assurance, we are obligated to recognize,
as both states and the regulated community already do, that there may
be circumstances in which states are simply unable to develop and
submit those SIP revisions by January 2, 2011, or for some period of
time beyond that date. As a result, absent further action by EPA, those
States' affected sources confront the risk that they may have to put on
hold their plans to construct or modify, a risk that may have adverse
consequences for the economy.
Given these exigent circumstances, EPA proposes this plan, within
the limits of our power, with the intent to make a back-up permitting
authority available--and to send a signal of assurance expeditiously in
order to reduce uncertainty and thus facilitate businesses' planning.
Within the design of the CAA, it is EPA that must fill that role of
back-up permitting authority. This SIP Call action and the companion
FIP action fulfill the CAA requirements to establish EPA in that role.
At the same time, we propose these actions with the intent that
states retain as much discretion as possible in the hand of the states.
In this rulemaking, EPA proposes states may choose the deadline they
consider reasonable for submission of their corrective SIP revision.
If, under CAA requirements, we are compelled to promulgate a FIP, we
invite the affected State to accept a delegation of authority to
implement that FIP, so that it will still be the State that processes
the permit applications, albeit operating under Federal law. In
addition, if we are compelled to issue a FIP, we intend to continue to
work closely with the State to assist it in developing and submitting
for approval its corrective SIP revision, so as to minimize the amount
of time that the FIP must remain in place.
Finally, we can report that in informal conversations, officials of
various states have acknowledged the need for our SIP call and FIP
actions. That is, they have acknowledged that a short-term FIP may be
necessary in their states to establish permitting authority to
construct and modify in accordance with environmental safeguards for
these sources. In addition, some states have indicated that they will
closely consider their opportunities to accept delegation of the
permitting responsibilities.
J. Sanctions
Under CAA section 179(a)(3)(A), if EPA finds that a State failed to
submit a PSD SIP revision as required under a SIP Call, then a
mandatory sanctions clock begins to run, so that if the State does not
submit the required SIP revision within 18 months, EPA must impose one
of two sanctions identified under CAA section 179; if the State does
not submit the required SIP revision within another 6 months, EPA must
impose the second of the sanctions. However, because each sanction
applies only to nonattainment areas, it has been a longstanding EPA
position that a finding that a State has failed to submit a required
SIP revision for a PSD area will not trigger mandatory sanctions.
The two sanctions are described in CAA section 179(b) and include:
(i) ``Highway sanctions,'' which are ``a prohibition, applicable to a
nonattainment area, on the approval'' of certain highway construction
projects or certain Federal grants for highway construction, CAA
section 179(b)(1); and (ii) ``[i]n applying the emission offset
requirements of [CAA section 173] to new or modified sources or
emissions units for which a permit is required under this part, the
ratio of emissions reductions to increased emissions shall be at least
2 to 1.'' CAA section 179(b)(2).
Each of these sanctions applies, by its terms, to nonattainment
areas. That is, as just quoted, CAA section 179(b)(1) limits the
application of the highway sanctions ``to a nonattainment area,'' and
the offsets sanctions under CAA section 173(c) apply only to
nonattainment areas. See, e.g., CAA section 173(c)(1) (referring to
``any offset requirement under this part [D],'' which is entitled,
``Plan Requirements for Nonattainment Areas''); section 182(b)(5)
(offset requirement for ozone moderate areas); section 182(c)(10)
(offset requirement for ozone serious areas); section 182(d)(2) (offset
requirement for ozone severe areas); section 182(e)(1) (offset
requirement for ozone extreme areas). Neither of the mandatory
sanctions provided under CAA section 179(b) applies to attainment/
unclassifiable areas.
As a result, a finding that a State has failed to submit a required
SIP revision will not trigger mandatory sanctions.
K. Title V
We note that a number of states may have a similar problem with
their approved title V operating permit programs, (i.e., that their
title V programs do not apply to GHG-emitting sources). We intend to
address this issue through separate rulemaking.
V. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
B. Paperwork Reduction Act
This action imposes new information collection burden. Although
this action asks states to provide information during the comment
period, the information requested, which concerns whether the states
have authority to regulate GHGs under their SIP PSD provisions, is
substantially similar to the information already requested of the
states in the Tailoring Rule. The OMB has previously approved the
information collection requirements contained in the existing
regulations for PSD (see, e.g., 40 CFR 52.21) and title V (see 40 CFR
parts 70 and 71) under the provisions of the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0003
and OMB control number 2060-0336 respectively. The OMB control numbers
for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The tailoring rule does not establish any new requirements (either
control or reporting) for any sources. It merely establishes the
thresholds that trigger NSR and title V for GHG sources. The trigger
for GHG and title V is not due to the tailoring rule but the result of
the endangerment finding and the LDVR. The NSR and title V ICRs will
need to be modified to include the new sources that will be triggered
due to the GHG requirements (in July 2011). The Agency anticipates
making such modifications upon renewal of the NSR and title V ICRs at
the end of the year.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
[[Page 53906]]
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this notice on small
entities, small entity is defined as: (1) A small business that is a
small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards (see 13 CFR 121.201); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; or (3) a small organization that is any not-for-profit
enterprise that is independently owned and operated and is not dominant
in its field.
This proposed rule will affect states and will not, in and of
itself, directly affect sources. In addition, although this rule could
lead to Federal permitting requirements for certain sources, those
sources are large emitters of GHGs and tend to be large sources. After
considering the economic impacts of this proposed rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
The action may impose a duty on certain State, local or tribal
governments to meet their existing obligation for PSD SIP submittal,
but with lesser expenditures. Thus, this rule is not subject to the
requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132--Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action merely prescribes EPA's
action for states that do not meet their existing obligation for PSD
SIP submittal. Thus, Executive Order 13132 does not apply to this
action.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action,
EPA is not addressing any tribal implementation plans. This action is
limited to states that do not meet their existing obligation for PSD
SIP submittal. Thus, Executive Order 13175 does not apply to this
action.
Although Executive Order 13175 does not apply to this proposed
rule, EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it merely prescribes EPA's action for states that do not
meet their existing obligation for PSD SIP submittal.
H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action merely prescribes EPA's
action for states that do not meet their existing obligation for PSD
SIP submittal.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This proposed rule merely prescribes EPA's action for
states that do not meet their existing obligation for PSD SIP
submittal.
VI. Statutory Authority
The statutory authority for this action is provided by sections
101, 111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401,
7411, 7414, 7416, and 7601).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon dioxide,
Carbon dioxide equivalents, Carbon monoxide, Greenhouse gases,
Hydrofluorocarbons, Intergovernmental relations, Lead, Methane,
Nitrogen dioxide, Nitrous oxide, Ozone, Particulate matter,
Perfluorocarbons, Reporting and recordkeeping requirements, Sulfur
hexafluoride, Sulfur oxides, Volatile organic compounds.
[[Page 53907]]
Dated: August 12, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-21701 Filed 9-1-10; 8:45 am]
BILLING CODE 6560-50-P