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					                                              82246                Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations

                                                (e) Enforcement. The U.S. Coast                                   a corrective state implementation plan                information is not publicly available,
                                              Guard may be assisted in the patrol and                             (SIP) revision to apply their Clean Air               e.g., CBI or other information whose
                                              enforcement of the security zones by the                            Act (CAA or Act) Prevention of                        disclosure is restricted by statute.
                                              San Diego Harbor Police.                                            Significant Deterioration (PSD) program               Certain other material, such as
                                                Dated: December 20, 2010.                                         to sources of greenhouse gases (GHGs).                copyrighted material, will be publicly
                                              P.J. Hill,                                                          This action will ensure that a permitting             available only in hard copy. Publicly
                                              Commander, U.S. Coast Guard, Acting
                                                                                                                  authority—EPA—is available in these                   available docket materials are available
                                              Captain of the Port San Diego, CA.                                  states as of January 2, 2011, when PSD                either electronically in http://www.
                                              [FR Doc. 2010–32914 Filed 12–28–10; 11:15 am]
                                                                                                                  becomes applicable to GHG-emitting                    regulations.gov or in hard copy at the
                                                                                                                  sources, to issue preconstruction PSD                 U.S. Environmental Protection Agency,
                                              BILLING CODE 9110–04–P
                                                                                                                  permits and thereby facilitate                        Air Docket, EPA/DC, EPA West
                                                                                                                  construction or expansion. The seven                  Building, Room 3334, 1301 Constitution
                                                                                                                  states are: Arizona: Both Pinal County                Ave., NW., Washington, DC. The Public
                                              ENVIRONMENTAL PROTECTION                                            and Rest of State (excluding Maricopa
                                              AGENCY                                                                                                                    Reading Room is open from 8:30 a.m. to
                                                                                                                  County, Pima County, and Indian                       4:30 p.m., Monday through Friday,
                                              40 CFR Part 52                                                      Country), Arkansas, Florida, Idaho,                   excluding legal holidays. The telephone
                                                                                                                  Kansas, Oregon, and Wyoming. This                     number for the Public Reading Room is
                                              [EPA–HQ–OAR–2010–0107; FRL–9245–3]                                  action is related to EPA’s recently                   (202) 566–1744, and the telephone
                                              RIN 2060–AQ45                                                       promulgated final rule, published on                  number for the Air Docket is (202) 566–
                                                                                                                  December 13, 2010, which we call the                  1742.
                                              Action To Ensure Authority To Issue                                 GHG PSD SIP call, and in which EPA
                                              Permits Under the Prevention of                                     made a finding of substantial                         FOR FURTHER INFORMATION CONTACT:      Ms.
                                              Significant Deterioration Program to                                inadequacy and issued a SIP call for                  Cheryl Vetter, Air Quality Policy
                                              Sources of Greenhouse Gas                                           these seven states and several others on              Division, Office of Air Quality Planning
                                              Emissions: Federal Implementation                                   grounds that their SIPs do not apply the              and Standards (C504–03),
                                              Plan                                                                PSD program to GHG-emitting sources.                  Environmental Protection Agency,
                                                                                                                  DATES: This action is effective on                    Research Triangle Park, NC 27711;
                                              AGENCY:  Environmental Protection                                                                                         telephone number: (919) 541–4391; fax
                                              Agency (EPA).                                                       December 30, 2010.
                                                                                                                  ADDRESSES: EPA has established a                      number: (919) 541–5509; e-mail
                                              ACTION: Final rule.                                                                                                       address: vetter.cheryl@epa.gov.
                                                                                                                  docket for this rulemaking under Docket
                                              SUMMARY:  EPA is establishing a federal                             ID No. EPA–HQ–OAR–2010–0107. All                         For information related to a specific
                                              implementation plan (FIP) to apply in                               documents in the docket are listed in                 state, local, or tribal permitting
                                              each of seven states that have not                                  the http://www.regulations.gov index.                 authority, please contact the appropriate
                                              submitted by their established deadline                             Although listed in the index, some                    EPA regional office:

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

                                              I ............................................   Dave Conroy, Chief, Air Programs Branch, EPA Region             Connecticut, Massachusetts, Maine, New Hampshire,
                                                                                                  1, 5 Post Office Square, Suite 100, Boston, MA                 Rhode Island, and Vermont
                                                                                                  02109–3912, (617) 918–1661.
                                              II ...........................................   Raymond Werner, Chief, Air Programs Branch, EPA                 New Jersey, New York, Puerto Rico, and Virgin Is-
                                                                                                  Region 2, 290 Broadway, 25th Floor, New York, NY               lands.
                                                                                                  10007–1866, (212) 637–3706.
                                              III ..........................................   Kathleen Cox, Chief, Permits and Technical Assess-              District of Columbia, Delaware, Maryland, Pennsyl-
                                                                                                  ment Branch, EPA Region 3, 1650 Arch Street,                   vania, Virginia, and West Virginia.
                                                                                                  Philadelphia, PA 19103–2029, (215) 814–2173.
                                              IV ..........................................    Lynorae Benjamin, Chief, Regulatory Development                 Alabama, Florida, Georgia, Kentucky, Mississippi, North
                                                                                                  Section, Air, Pesticides and Toxics Management Divi-           Carolina, South Carolina, and Tennessee.
                                                                                                  sion, EPA Region 4, Atlanta Federal Center, 61
                                                                                                  Forsyth Street, SW, Atlanta, GA 30303–3104, (404)
                                                                                                  562–9033.
                                              V ...........................................    J. Elmer Bortzer, Chief, Air Programs Branch (AR–18J),          Illinois, Indiana, Michigan, Minnesota, Ohio, and Wis-
                                                                                                  EPA Region 5, 77 West Jackson Boulevard, Chi-                    consin.
                                                                                                  cago, IL 60604–3507, (312) 886–1430.
                                              VI ..........................................    Jeff Robinson, Chief, Air Permits Section, EPA Region           Arkansas, Louisiana, New Mexico, Oklahoma, and
                                                                                                  6, Fountain Place 12th Floor, Suite 1200, 1445 Ross            Texas.
                                                                                                  Avenue, Dallas, TX 75202–2733, (214) 665–6435.
                                              VII .........................................    Mark Smith, Chief, Air Permitting and Compliance                Iowa, Kansas, Missouri, and Nebraska.
                                                                                                  Branch, EPA Region 7, 901 North 5th Street, Kansas
                                                                                                  City, KS 66101, (913) 551–7876.
                                              VIII ........................................    Carl Daly, Unit Leader, Air Permitting, Monitoring &            Colorado, Montana, North Dakota, South Dakota, Utah,
                                                                                                  Modeling Unit, EPA Region 8, 1595 Wynkoop Street,              and Wyoming.
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                                                                                                  Denver, CO 80202–1129, (303) 312–6416.
                                              IX ..........................................    Gerardo Rios, Chief, Permits Office, EPA Region 9, 75           Arizona, California, Hawaii and the Pacific Islands, In-
                                                                                                  Hawthorne Street, San Francisco, CA 94105, (415)               dian Country within Region 9 and Navajo Nation, and
                                                                                                  972–3974.                                                      Nevada.
                                              X ...........................................    Nancy Helm, Manager, Federal and Delegated Air Pro-             Alaska, Idaho, Oregon, and Washington.
                                                                                                  grams Unit, EPA Region 10, 1200 Sixth Avenue,
                                                                                                  Suite 900, Seattle, WA 98101, (206) 553–6908.




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                                                                Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations                                                            82247

                                              SUPPLEMENTARY INFORMATION:                                         determined that these seven states have                    Tailoring Rule.3 This independent
                                                                                                                 SIPs that are substantially inadequate to                  obligation on sources is specific to PSD
                                              I. General Information                                             achieve CAA requirements because their                     and derives from CAA section 165(a).
                                              A. Does this action apply to me?                                   PSD programs do not apply to GHG-                          Any source that is subject to a state PSD
                                                                                                                 emitting sources, and EPA established                      air permitting regulation not structured
                                                Entities affected by this rule include                           that deadline.                                             to apply to GHG-emitting sources will
                                              the seven state and local permitting                                 Entities potentially affected by this                    rely on this rule to obtain a permit that
                                              authorities 1 identified by EPA to have                            rule also include sources in all industry                  contains emission limitations that
                                              not submitted by their deadline a SIP                              groups, which have a direct obligation                     conform to requirements under CAA
                                              revision that would apply PSD                                      under the CAA to obtain a PSD permit                       section 165(a). The majority of entities
                                              requirements to GHG-emitting sources.                              for GHGs for projects that meet the                        potentially affected by this action are
                                              In the GHG PSD SIP call,2 EPA                                      applicability thresholds set forth in the                  expected to be in the following groups:

                                                                                     Industry group                                                                                  NAICS a

                                              Utilities (electric, natural gas, other systems) ..........................................          2211, 2212, 2213.
                                              Manufacturing (food, beverages, tobacco, textiles, leather) ....................                     311, 312, 313, 314, 315, 316.
                                              Wood product, paper manufacturing ........................................................           321, 322.
                                              Petroleum and coal products manufacturing ...........................................                32411, 32412, 32419.
                                              Chemical manufacturing ...........................................................................   3251, 3252, 3253, 3254, 3255, 3256, 3259.
                                              Rubber product manufacturing .................................................................       3261, 3262.
                                              Miscellaneous chemical products .............................................................        32552, 32592, 32591, 325182, 32551.
                                              Nonmetallic mineral product manufacturing .............................................              3271, 3272, 3273, 3274, 3279.
                                              Primary and fabricated metal manufacturing ...........................................               3311, 3312, 3313, 3314, 3315, 3321, 3322, 3323, 3324, 3325, 3326,
                                                                                                                                                     3327, 3328, 3329.
                                              Machinery manufacturing .........................................................................    3331, 3332, 3333, 3334, 3335, 3336, 3339.
                                              Computer and electronic products manufacturing ...................................                   3341, 3342, 3343, 3344, 3345, 4446.
                                              Electrical equipment, appliance, and component manufacturing ............                            3351, 3352, 3353, 3359.
                                              Transportation equipment manufacturing .................................................             3361, 3362, 3363, 3364, 3365, 3366, 3366, 3369.
                                              Furniture and related product manufacturing ...........................................              3371, 3372, 3379.
                                              Miscellaneous manufacturing ...................................................................      3391, 3399.
                                              Waste management and remediation ......................................................              5622, 5629.
                                              Hospitals/nursing and residential care facilities .......................................            6221, 6231, 6232, 6233, 6239.
                                              Personal and laundry services .................................................................      8122, 8123.
                                              Residential/private households .................................................................     8141.
                                              Non-residential (commercial) ....................................................................    Not available. Codes only exist for private households, construction
                                                                                                                                                     and leasing/sales industries.
                                                 a North   American Industry Classification System.


                                              B. How is the preamble organized?                                    G. Executive Order 13045—Protection of                   CAA PSD program to sources of GHGs.
                                                                                                                      Children From Environmental Health                    This is the deadline EPA established
                                                The information presented in this                                     Risks and Safety Risks                                after the affected states indicated that
                                              preamble is organized as follows:                                    H. Executive Order 13211—Actions
                                                                                                                                                                            they would not object to it, to ensure
                                                                                                                      Concerning Regulations That
                                              I. General Information                                                  Significantly Affect Energy Supply,                   that a permitting authority would be in
                                                 A. Does this action apply to me?                                     Distribution, or Use                                  place as of January 2, 2011 to facilitate
                                                 B. How is the preamble organized?                                 I. National Technology Transfer and                      issuance of PSD permits for
                                              II. Overview of Rulemaking                                              Advancement Act                                       construction and modification of
                                              III. Final Action and Response to Comments                           J. Executive Order 12898—Federal Actions                 sources.
                                                 A. Authority To Promulgate a FIP                                     To Address Environmental Justice in
                                                 B. Timing of GHG PSD FIP
                                                                                                                                                                               This preamble should be read in
                                                                                                                      Minority Populations and Low-Income                   conjunction with the preamble for the
                                                 C. Substance of GHG PSD FIP                                          Populations
                                                 D. Period for GHG PSD FIP To Remain in                                                                                     proposed rulemaking for this action,
                                                                                                                   K. Determination Under Section 307(d)
                                                    Place                                                          L. Congressional Review Act
                                                                                                                                                                            which we call the GHG PSD FIP
                                                 E. Primacy of SIP Process                                       V. Judicial Review                                         proposal or the FIP proposal; 4 and the
                                              IV. Statutory and Executive Order Reviews                          VI. Statutory Authority                                    SIP call rulemaking that is associated
                                                 A. Executive Order 12866—Regulatory                                                                                        with this rulemaking, including (i) the
                                                    Planning and Review                                          II. Overview of Rulemaking                                 proposed SIP call rulemaking, which we
                                                 B. Paperwork Reduction Act
                                                                                                                    In this rulemaking, EPA is                              call the GHG PSD SIP call proposal or
                                                 C. Regulatory Flexibility Act
                                                 D. Unfunded Mandates Reform Act                                 establishing a FIP, which we call the                      the SIP call proposal, and which
                                                 E. Executive Order 13132—Federalism                             GHG PSD FIP, or simply, the FIP, to                        accompanied the FIP proposal,5 and (ii)
                                                 F. Executive Order 13175—Consultation                           apply in each of seven states that have                    the final SIP call rulemaking, which we
                                                    and Coordination With Indian Tribal                          not submitted by December 22, 2010, a                      call the GHG PSD SIP call or the SIP
                                                    Governments                                                  corrective SIP revision to apply their                     call. Background information for this
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                                                1 For convenience, we refer to ‘‘states’’ in this                  3 Prevention of Significant Deterioration and Title        5 Action to Ensure Authority to Issue Permits

                                              rulemaking to collectively mean states and local                   V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR         under the Prevention of Significant Deterioration
                                              permitting authorities.                                            31514 (June 3, 2010).                                      Program to Sources of Greenhouse Gas Emissions:
                                                2 Action to Ensure Authority to Issue Permits                      4 Action to Ensure Authority to Issue Permits
                                                                                                                                                                            Finding of Substantial Inadequacy and SIP Call—
                                              under the Prevention of Significant Deterioration                  under the Prevention of Significant Deterioration          Proposed rule, 75 FR 53892 (September 2, 2010).
                                              Program to Sources of Greenhouse Gas Emissions:                    Program to Sources of Greenhouse Gas Emissions:
                                              Finding of Substantial Inadequacy and SIP Call—                    Federal Implementation Plan—Proposed rule, 75 FR
                                              Final rule, 75 FR 77698 (December 13, 2010).                       53883 (September 2, 2010).



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                                              82248            Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations

                                              rulemaking is found in those                             corrective SIP call-mandated SIP                         revision by its deadline, then, EPA
                                              rulemakings and in the rulemakings                       revision by its December 22, 2010                        would finalize the FIP for that other
                                              referenced therein and will not be                       deadline. EPA notified each state of the                 state, too.10
                                              reiterated here.                                         finding by letter. Those letters are                        We reiterate that each of the seven
                                                 By notices dated September 2, 2010,                   located in the docket for this                           states affected by this rulemaking
                                              EPA published as companion actions                       rulemaking.                                              specifically indicated to EPA that it
                                              the SIP call proposal and the FIP                                                                                 preferred that EPA promulgate a FIP to
                                                                                                       III. Final Action and Response to
                                              proposal. In the SIP call proposal, EPA                                                                           take effect by January 2, 2011—when
                                                                                                       Comments
                                              proposed to find that 13 states with                                                                              sources in the state become subject to
                                              EPA-approved SIP PSD programs are                        A. Authority To Promulgate a FIP                         PSD—rather than EPA not promulgate a
                                              substantially inadequate to meet CAA                       In this rulemaking, EPA is finalizing                  FIP until a later time. This is because
                                              requirements because they do not                         the GHG PSD FIP as proposed for each                     each state sought to assure that, as of
                                              appear to apply PSD requirements to                      of the seven states: (1) Arizona: Both                   January 2, 2011, a permitting authority
                                              GHG-emitting sources. For each of these                  Pinal County and Rest of State                           for GHG-emitting sources would be in
                                              states, EPA proposed to require the state                (excluding Maricopa County Pima                          place in the state. These states made this
                                              (through a SIP call) to revise its SIP as                County, and Indian Country); 8 (2)                       choice by indicating that they did not
                                              necessary to correct such inadequacies.                  Arkansas; (3) Florida; (4) Idaho; (5)                    object to EPA establishing a SIP
                                              In the FIP proposal, EPA proposed a FIP                  Kansas; (6) Oregon; and (7) Wyoming.                     submittal date of December 22, 2010,
                                              to apply in any state that is unable to                    The CAA authority for EPA to                           when EPA made clear in the proposed
                                              submit, by its deadline, a corrective SIP                promulgate a FIP is found in CAA                         SIP call and FIP that if the state did not
                                              revision to apply the PSD program to                     section 110(c)(1), which provides—                       submit the required SIP revision by that
                                              sources of GHGs. The FIP would                              The Administrator shall promulgate a
                                                                                                                                                                date, then EPA would promulgate the
                                              provide authority to EPA to issue PSD                    Federal implementation plan at any time                  FIP the next day. 75 FR at 53904/2
                                              permits for construction or modification                 within 2 years after the Administrator—(A)               (proposed SIP call); id. at 53889/2
                                              of appropriate GHG sources in the state.                 finds that a State has failed to make a                  (proposed FIP). For the most part, the
                                                 On December 1, 2010, EPA                              required submission * * * unless the State               remaining states that were subject to the
                                              promulgated the GHG PSD SIP call, and                    corrects the deficiency, and [EPA] approves              SIP call indicated a later SIP submittal
                                              EPA published it by notice dated                         the plan or plan revision, before the                    date, but they believe that although this
                                                                                                       Administrator promulgates such [FIP].                    will mean a short delay in the
                                              December 13, 2010.6 In the SIP call,
                                              EPA finalized its finding that the SIPs                     As noted earlier in this preamble, on                 availability of a permitting authority for
                                              of 13 states (comprising 15 state and                    December 23, 2010, EPA issued a                          GHG-emitting sources in their state, that
                                              local programs) are substantially                        finding that each of the seven states                    delay will not adversely affect their
                                              inadequate to meet CAA requirements                      affected by this rule ‘‘failed to make [the]             sources. EPA regional and headquarters
                                              because they do not apply PSD                            required submission’’ of the corrective                  officials conferred extensively with state
                                              requirements to GHG-emitting sources.                    SIP call-mandated SIP revision by its                    officials concerning the states’ progress
                                              In addition, EPA finalized a SIP call for                December 22, 2010 deadline.                              and plans and with the National
                                              each of these states, which required the                 Accordingly, under CAA section                           Association of Clean Air Agencies.11
                                              state to revise its SIP as necessary to                  110(c)(1), EPA is required to promulgate                    In this rulemaking, EPA is not taking
                                              correct such inadequacies. Further, EPA                  a FIP for each of the states.                            final action to promulgate a FIP for any
                                              established a deadline for each state to                    It should be noted that EPA                           of the other states which EPA included
                                              submit its corrective SIP revision. These                specifically proposed the FIP for six of                 in the FIP proposal. This is because for
                                              deadlines, which differed among the                      the seven states affected by this                        each of the other states, either EPA did
                                              states, ranged from December 22, 2010,                   rulemaking, all except for Wyoming.                      not finalize the SIP call or EPA did
                                              to December 1, 2011.                                     EPA did not include Wyoming among                        finalize the SIP call but established a
                                                 Seven states received a SIP submittal                 the states for which EPA specifically                    SIP submittal deadline that has not yet
                                              deadline of December 22, 2010, based                     proposed the SIP call, and, as a result,                 arrived. As a result, EPA has not issued
                                              on information received from each state                  did not include Wyoming among the                        a finding of failure to submit the
                                              during the public comment period that                    states for which EPA specifically                        required SIP revision for any of these
                                              they would not object to this deadline.                  proposed the FIP. However, in the                        other states. It continues to be EPA’s
                                              These seven states are: (1) Arizona: Both                proposed SIP call, EPA stated that it was                intent that if any of these other states
                                              Pinal County and Rest of State                           soliciting comment on all the other                      does not submit the required SIP
                                              (excluding Maricopa County, Pima                         states, and, if EPA received information                 revision by its deadline, then EPA will
                                              County, and Indian Country); 7 (2)                       indicating that another state should                     immediately issue a finding of failure to
                                              Arkansas; (3) Florida; (4) Idaho; (5)                    receive the SIP call, then EPA would,                    submit a required SIP submission and
                                              Kansas; (6) Oregon; and (7) Wyoming.                     without a supplemental or further                        immediately promulgate a GHG PSD FIP
                                                 On December 23, 2010, EPA issued a                    proposal, issue a final SIP call for that                for that state.
                                              finding under CAA section 110(c)(1)(A)                   other state.9 Similarly, EPA stated in the                  In comments received, some
                                              that each of the seven states ‘‘failed to                FIP proposal that if EPA issued a SIP                    commenters stated, ‘‘Remarkably, EPA
                                              make [the] required submission’’ of the                  call for that other state, and the other                 states that it will also directly
                                                                                                       state did not submit a corrective SIP                    promulgate a SIP call and FIP for any
                                                6 Action to Ensure Authority to Issue Permits
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                                              Under the Prevention of Significant Deterioration           8 In this rulemaking, EPA is finalizing for Arizona      10 Action to Ensure Authority to Issue Permits

                                              Program to Sources of Greenhouse Gas Emissions:          a separate GHG PSD FIP for each of Pinal County          under the Prevention of Significant Deterioration
                                              Finding of Substantial Inadequacy and SIP Call—          and for the rest of the state (excluding Maricopa        Program to Sources of Greenhouse Gas Emissions:
                                              Final Rule, 75 FR 77698 (December 13, 2010).             County, Pima County, and Indian Country).                Federal Implementation Plan—Proposed rule, 75 FR
                                                7 EPA issued to Arizona a separate finding of             9 Action to Ensure Authority to Issue Permits         53,886 (September 2, 2010).
                                              substantial inadequacy, SIP call, and deadline for       under the Prevention of Significant Deterioration           11 Declaration of Gina McCarthy, ¶¶4–5, pp. 3–4,

                                              SIP submittal for each of Pinal County and for the       Program to Sources of Greenhouse Gas Emissions:          ‘‘EPA’s Response To Motions To Stay,’’ Coalition for
                                              rest of the state (excluding Maricopa County, Pima       Finding of Substantial Inadequacy and SIP Call—          Responsible Regulation v. EPA, No. 09–1322 (and
                                              County, and Indian Country).                             Proposed rule, 75 FR 53,895–6 (September 2, 2010).       consolidated cases) (McCarthy Declaration).



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                                                               Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations                                        82249

                                              states it has inadvertently omitted from                 any period of time during which larger-               promulgating the FIP immediately
                                              its notice of proposed rulemaking.’’                     emitting sources may be under an obligation           because we wish to minimize any
                                              Although the commenters do not                           to obtain PSD permits for their GHGs when             disruption in permitting for the larger
                                                                                                       they construct or modify, but no permitting
                                              elaborate upon this statement, they                                                                            GHG-emitting sources and we are doing
                                                                                                       authority is authorized to issue those
                                              seem to imply that it would be improper                  permits.                                              so after consultation with the affected
                                              for EPA to finalize a FIP for such states                                                                      states. The seven states that are the
                                              because we did not provide adequate                      75 FR at 53,889/2.                                    subject of this rulemaking told EPA that
                                              notice and opportunity for comment.                         In this final rulemaking, we are                   they would not object to the
                                                 The only state for which this                         proceeding in the same manner that we                 promulgation of a FIP at the earliest
                                              comment may be relevant is Wyoming,                      proposed, and for the same reasons.                   possible deadline, or December 22,
                                              as noted earlier in this preamble. We                    That is, we are exercising our discretion             2010, because that would ensure a
                                              disagree with the commenters. In the                     to promulgate the FIP for each of the                 permitting authority would be in place
                                              proposal, we listed the states with                      seven affected states ‘‘immediately in                as of January 2, 2011. Without the FIP,
                                              approved SIP PSD programs for which                      order to minimize any period of time                  these states would be without an
                                              we were not proposing a finding of                       during which larger-emitting sources                  approved program to issue PSD permits
                                              substantial inadequacy and a SIP call,                   may be under an obligation to obtain                  for GHG-emitting sources until the
                                              and so were not proposing a FIP. But we                  PSD permits for their GHGs when they                  states submit, and EPA approves, a SIP
                                              went on to specifically solicit comment                  construct or modify, but no permitting                revision. The FIP provides sources in
                                              on whether each of those states merited                  authority is authorized to issue those                these states an immediate mechanism to
                                              a finding, SIP call,12 and, ultimately, a                permits.’’ 75 FR at 53889/2. We believe               obtain required permits for construction
                                              FIP; and we included citations to the                    that acting immediately is in the best                and modification until the revised SIPs
                                              relevant SIP provisions.13 Moreover, we                  interests of the states and the regulated             are approved.
                                              generally described the circumstances                    community.                                               As for commenters’ analysis of CAA
                                              under which those states may merit a                        EPA received comments that the                     section 110(c), that provision, by its
                                              FIP. As a result, commenters had                         process EPA has employed in this                      terms, imposes no constraints on when
                                              adequate notice that EPA could                           action, which was to propose the FIP as               EPA may propose a FIP. This stands in
                                              ultimately finalize a FIP for those states               a companion rule to the proposed SIP                  contrast to other CAA provisions that do
                                              if and when they missed their SIP                        call, and then to finalize the FIP                    impose requirements for the timing of
                                              submittal deadlines, and they had full                   immediately after making a finding that               proposals. See CAA sections
                                              opportunity to comment if they had                       a state has not submitted the required                109(a)(1)(A), 111(b)(1)(B). In light of the
                                              relevant views or information. This was                  SIP revision by its deadline, ‘‘is not how            lack of constraints in CAA section
                                              discussed in greater detail in the SIP                   CAA section 110 works or how Congress                 110(c), EPA was free to propose the FIP
                                              call rulemaking 75 FR at 77715/6.                        intended it to work.’’ The commenter                  at the same time that EPA proposed the
                                                                                                       added that—                                           SIP call. We do not agree that the overall
                                              B. Timing of GHG PSD FIP                                                                                       construct of CAA section 110 imposes
                                                                                                          [O]nly after a state has * * * failed to
                                                In the GHG PSD FIP proposal, we                        [submit a SIP revision] after an applicable           the implicit constraints that the
                                              stated:                                                  period as specified in the CAA or EPA                 commenter identifies.
                                                                                                       regulations * * * and after EPA has made a               Instead, what is important is that for
                                                 If any of the states for which we issue the
                                              SIP Call does not meet its SIP submittal                 determination that the SIP revision is                each of the 13 states for which EPA
                                              deadline, we will immediately issue a                    deficient in one or more respects, may the            specifically proposed the FIP, which
                                              finding of failure to submit a required SIP              Agency step in to propose a FIP rule. And             were the same as the ones for which
                                              submission, under CAA section 110(c)(1)(A),              only after taking that step could EPA then            EPA proposed the SIP call, the public
                                              and immediately thereafter promulgate a FIP              proceed * * * [to take final action on the            had adequate notice of the
                                              for the state. This timing for FIP                       FIP.] Notwithstanding EPA’s strained and
                                                                                                                                                             circumstances under which EPA
                                              promulgation is authorized under CAA                     out-of-context emphasis on the isolated
                                                                                                       sentence fragment, ‘‘at any time within,’’ the        proposed that the state would become
                                              section 110(c)(1), which authorizes us to                                                                      subject to the FIP. Those circumstances
                                              promulgate a FIP ‘‘at any time within 2 years            very fact that the CAA affords EPA up to two
                                              after’’ finding a failure to submit a required           full years in which to complete the                   were that if EPA finalized the SIP call,
                                              SIP submission. We intend to take these                  cooperative task of considering whether a FIP         as proposed, for the state, and if the
                                              actions immediately in order to minimize                 is needed and how such a plan should be               state did not submit a SIP revision
                                                                                                       fashioned, and the corollary fact that the Act        applying its PSD program to GHG-
                                                12 During the comment period, Wyoming did              does not mandate any federal takeover in less         emitting sources by the deadline, EPA
                                              send information indicating that, in Wyoming’s           than two years, militate against EPA’s                would establish a FIP for that state. In
                                              view, Wyoming did not have legal authority to            approach here to FIP rulemaking. In                   fact, EPA did finalize the SIP call for all
                                              apply PSD to GHG-emitting sources and therefore          particular, those facts undermine EPA’s
                                              Wyoming should be included in the SIP call. A            assumption that it need not take the time to
                                                                                                                                                             but one of those 13 states and is now
                                              Wyoming environmental group provided comments            develop a proposed plan specifically directed         finalizing the FIP for six of them.
                                              during the comment period saying that it believed        at remedying identified deficiencies in a             Further, EPA received comments on the
                                              Wyoming did have legal authority to apply PSD to                                                               proposed FIP from several states and/or
                                                                                                       given state submission, and to give states and
                                              GHG-emitting sources. Accordingly, it is clear that
                                              the solicitation of comment was sufficient notice to     the regulated community a meaningful                  industries located in states for which
                                              the public. More detailed information regarding          opportunity to comment on a proposed FIP              EPA proposed the FIP, which indicates
                                              Wyoming and other states covered in this                 that has been specifically developed to               that the FIP proposal provided adequate
                                              rulemaking may be found in the ‘‘Supplemental            address the individual needs and                      notice. See, e.g., comments identified in
                                              Information Document for Final Action to Ensure          circumstances of such a state. (Emphasis in           the rulemaking docket as document
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                                              Authority to Issue Permits under the Prevention of       original.)
                                              Significant Deterioration Program to Sources of                                                                numbers 0084.1 (Texas), 0055.1
                                              Greenhouse Gas Emissions: Finding of Substantial            EPA disagrees with these comments.                 (Arkansas), 0066.1 (Texas Industry
                                              Inadequacy and SIP Call,’’ located in the docket for     As we stated in the proposed rule, CAA                Project), and 0109.1 (National Mining
                                              this rulemaking.                                         section 110(c)(1)(A) authorizes EPA to
                                                13 Thus, commenters are incorrect in
                                                                                                                                                             Association).
                                              characterizing EPA as having ‘‘inadvertently
                                                                                                       promulgate a FIP ‘‘at any time within 2                  Although for Wyoming EPA did not
                                              omitted [Wyoming] from its notice of proposed            years after’’ finding a failure to submit             specifically propose the SIP call or FIP,
                                              rulemaking.’’                                            a required SIP revision. We are                       the public had the same opportunity to


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                                              82250            Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations

                                              comment on the prospect of a FIP for                     as to whether their state law authorized              required submittal; or (ii) if the
                                              Wyoming as the public did for the states                 the application of PSD to GHG-emitting                proposed FIP is based on EPA’s
                                              for which EPA did specifically propose                   sources; (b) this detailed request                    disapproval of a SIP revision, whether
                                              the FIP. This is because EPA solicited                   demonstrated that the proposal did not                the state submits a revised SIP revision
                                              comment on whether to issue a SIP call                   establish the legal basis for the SIP call;           that EPA then approves.
                                              for Wyoming (along with other states                     and (c) as a result, the FIP proposal did               Most broadly, commenters’
                                              with approved PSD programs); made                        not include ‘‘information that is                     approach—which is that EPA cannot
                                              clear that if EPA received certain                       essential to determining whether a FIP                propose a FIP in concert with a SIP call,
                                              information, EPA would finalize the SIP                  for a given state is even appropriate and             but instead must proceed in seriatim by
                                              call for Wyoming; and, further, made                     justified.’’ (Emphasis in original.) This             completing the SIP call first and then
                                              clear that if EPA issued a SIP call for                  commenter added—                                      proposing the FIP—would result in
                                              Wyoming and Wyoming did not submit                          Only after EPA has received such                   lengthy delays in the establishment of a
                                              the required SIP by Wyoming’s                            information, and then taken the necessary             permitting authority to process GHG-
                                              deadline, then EPA would finalize the                    time to evaluate the information and to make          emitting sources’ PSD permit
                                              FIP. In fact, Wyoming commented on                       judgments as to whether or not a given state          applications. As a result, commenters’
                                              the FIP. See comment identified in the                   has authority under its SIP and other                 approach could well cause delays in
                                              rulemaking docket as document number                     elements of state law to regulate GHGs under          these sources’ ability to undertake
                                              0079.1.                                                  the PSD program—i.e., the steps EPA would             construction and modification projects.
                                                Moreover, EPA was clear that for each                  have to take under CAA section 307(d)(3) to             We include related comments and
                                              state subject to the SIP call that did not               provide to the public a meaningful                    responses in the Response to Comments
                                              submit the required SIP revision by its                  ‘‘summary’’ of ‘‘the factual data on which the
                                                                                                                                                             document.14
                                                                                                       proposed rule is based’’ and ‘‘the major legal
                                              SIP submittal deadline, EPA would
                                                                                                       interpretations and policy considerations             C. Substance of GHG PSD FIP
                                              immediately make a finding of failure to                 underlying the proposed rule’’—may EPA
                                              submit and immediately promulgate a                      propose a FIP for any state that has been               In the FIP proposal, we stated:
                                              FIP. EPA explained that this approach                    determined to lack that authority. (Emphasis             The proposed FIP constitutes the EPA
                                              was needed to assure the availability of                 in original.)                                         regulations found in 40 CFR 52.21, including
                                              a permitting authority for sources in the                                                                      the PSD applicability provisions, with a
                                                                                                          We disagree with this comment. The
                                              state.                                                                                                         limitation to assure that, strictly for purposes
                                                Finally, each of the states and the                    preamble for the FIP proposal included                of this rulemaking, the FIP applies only to
                                              public in general had adequate notice of                 the CAA section 307(d)(3)-required                    GHGs. Under the PSD applicability
                                              the terms of the FIP as it would apply                   ‘‘summary’’ of the factual basis and legal            provisions in 40 CFR 52.21(b)(50), the PSD
                                              in any state. Specifically, EPA indicated                interpretations. To reiterate, EPA                    program applies to sources that emit the
                                              that the FIP would apply PSD to                          identified the states for which EPA was               requisite amounts of any ‘‘regulated NSR
                                                                                                       proposing the FIP, 75 FR at 53886 and                 pollutant[s],’’ including any air pollutant
                                              GHG-emitting sources at the Tailoring                                                                          ‘‘subject to regulation.’’ However, in states for
                                              Rule thresholds.                                         table II–1 and 53889/1, and added that
                                                                                                       EPA would subject other states to the                 which EPA would promulgate a FIP to apply
                                                Therefore, the FIP proposal was clear                                                                        PSD to GHG-emitting pollutants, the
                                              as to the circumstances under which                      FIP if they, too, became subject to the
                                                                                                                                                             approved SIP already applies PSD to other air
                                              EPA proposed to promulgate a FIP, the                    SIP call, id. 53886 and table II–2 and                pollutants. To appropriately limit the scope
                                              timing for the FIP, and the terms of the                 53889/2; described the timing for the                 of the FIP, EPA proposes in this action to
                                              FIP. Moreover, each of those three                       FIP, id. 53889/2–3; described the                     amend 40 CFR 52.21(b)(50) to limit the
                                              things applied to each state that would                  substance of the FIP, id. 53889/3–                    applicability provision to GHGs.
                                              become subject to the SIP call.                          53890/1; and explained that CAA                          We propose this FIP because it would, to
                                              Accordingly, the FIP proposal did, in                    section 110(c)(1) provided the legal                  the greatest extent possible, mirror EPA
                                                                                                       basis, id. 53889/2. The purpose of the                regulations (as well as those of most of the
                                              fact, ‘‘give states and the regulated
                                                                                                       CAA section 307(d)(3) requirements is                 states). In addition, this FIP would readily
                                              community a meaningful opportunity to                                                                          incorporate the phase-in approach for PSD
                                              comment on a proposed FIP that has                       to provide the public with adequate
                                                                                                                                                             applicability to GHG sources that EPA has
                                              been specifically developed to address                   notice, and these statements did so by                developed in the Tailoring Rule and expects
                                              the individual needs and circumstances                   making clear the circumstances under                  to develop further through additional
                                              of such a state,’’ as the commenter                      which EPA was proposing to                            rulemaking. As explained in the Tailoring
                                              argues the FIP proposal needed to do.                    promulgate a FIP and the timing and                   Rule, incorporating this phase-in approach—
                                                Several commenters raised an                           substance of the proposed FIP.                        including Steps 1 and 2 of the phase-in as
                                              additional objection, which was that in                     It is true that for any state, whether             promulgated in the Tailoring Rule—can be
                                              their view, EPA failed to comply with                    and when EPA would finalize the FIP                   most readily accomplished through
                                              the requirements of CAA section                          for any state depended on other factors,              interpretation of the terms in the definition
                                                                                                                                                             ‘‘regulated NSR pollutant,’’ including the
                                              307(d)(3) that (i) the proposed FIP                      including whether EPA would finalize
                                                                                                                                                             term ‘‘subject to regulation.’’
                                              include a summary of ‘‘the factual data                  the SIP call for that state, what deadline               In accordance with the Tailoring Rule,
                                              on which the proposed rule is based’’                    EPA would establish, and whether the                  * * * the FIP would apply in Step 1 of the
                                              and ‘‘the major legal interpretations and                state would submit its required                       phase-in approach only to ‘‘anyway sources’’
                                              policy considerations underlying the                     corrective SIP revision by that deadline.             (that is, sources undertaking construction or
                                              proposed rule’’; and (ii) ‘‘[a]ll data,                  But the FIP proposal put the public on                modification projects that are required to
                                              information, and documents * * * on                      notice, with sufficient specificity, as to            apply for PSD permits anyway due to their
                                              which the proposed rule relies shall be                  EPA’s plan. In any event, any FIP is                  non-GHG emissions and that emit GHGs in
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                                              included in the docket on the date of                    necessarily dependent on other factors,               the amount of at least 75,000 tpy on a CO2e
                                                                                                                                                             basis) and would apply in Step 2 of the
                                              publication of the proposed rule.’’                      including state actions. That is, under
                                                                                                                                                             phase-in approach to both ‘‘anyway sources’’
                                              (Emphasis added by one of these                          any circumstances, whether EPA                        and sources that meet the 100,000/75,000-tpy
                                              commenters.) One of these commenters                     finalizes any proposed FIP depends on                 threshold (that is, (i) sources that newly
                                              explained that (a) in the SIP call                       whether (i) if the proposed FIP is based
                                              proposal, EPA had made a detailed                        on the failure of a state to make a                     14 The Response to Comments document for the

                                              request that states provide information                  required submittal, the state makes the               FIP can be found in the docket for this rulemaking.



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                                                               Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations                                             82251

                                              construct and would not be subject to PSD                the state and EPA for its permit. In                  Tailoring Rule and that accommodates
                                              on account of their non-GHG emissions, but               addition, all nonattainment areas in the              the difference in the Oregon program.
                                              that emit GHGs in the amount of at least                 nation are in attainment or are                       That is, as of January 2, 2011, sources
                                              100,000 tpy CO2e, and (ii) existing sources              unclassifiable for at least one pollutant,            in Oregon that are currently required to
                                              that emit GHGs in the amount of at least
                                              100,000 tpy CO2e, that undertake                         so that every nonattainment area is also              get PSD permits under the approved SIP
                                              modifications that would not trigger PSD on              a PSD area. In some of these areas, the               will be subject to review under the FIP
                                              the basis of their non-GHG emissions, but                state is the permitting authority for                 for greenhouse gases if they exceed the
                                              that increase GHGs by at least 75,000 tpy                nonattainment new source review (NSR)                 Tailoring Rule thresholds. As of July 1,
                                              CO2e).                                                   and EPA is the permitting authority for               2011, the determination of which
                                                 Under the FIP, with respect to permits for            PSD. As a result, there are instances in              sources will be subject to PSD review
                                              ‘‘anyway sources,’’ EPA will be responsible              which a new or modifying source in                    for greenhouse gases under the FIP will
                                              for acting on permit applications for only the           such an area has needed a                             be consistent with how applicability is
                                              GHG portion of the permit, and the state will            nonattainment NSR permit from the
                                              retain responsibility for the rest of the permit.
                                                                                                                                                             determined under the current Oregon
                                                                                                       state and a PSD permit from EPA.                      SIP for other regulated NSR pollutants.
                                              Likewise, with respect to permits for sources
                                              that meet the 100,000/75,000-tpy threshold,
                                                                                                          EPA is working expeditiously to
                                                                                                       develop recommended approaches for                    D. Period for GHG PSD FIP To Remain
                                              our preferred approach—for reasons of                                                                          in Place
                                              consistency—is that EPA will be responsible              EPA regions and affected states to use in
                                              for acting on permit applications for only the           addressing the shared responsibility of                 In the FIP proposal, we stated our
                                              GHG portion of the permit, that the state                issuing PSD permits for GHG-emitting                  intention to leave any promulgated FIP
                                              permitting authorities will be responsible for           sources. In addition, as discussed                    in place for as short a period as possible,
                                              the non-GHG portion of the permit, and EPA               below, we intend for the GHG PSD FIP                  and to process any corrective SIP
                                              will coordinate with the state permitting                to remain in place only as long as                    revision submitted by the state to fulfill
                                              authority as needed in order to fully cover              necessary for states’ SIPs to be
                                              any non-GHG emissions that, for example,
                                                                                                                                                             the requirements of the SIP call as
                                                                                                       approved. Moreover, in this interim                   expeditiously as possible. Specifically,
                                              are subject to BACT because they exceed the
                                              significance levels. We recognize that
                                                                                                       period, we intend to delegate permitting              we stated:
                                              questions may arise as to whether the state              responsibility to those states that are
                                                                                                                                                               After we have promulgated a FIP, it must
                                              permitting authorities have authority to                 able to implement it and that request it.             remain in place until the state submits a SIP
                                              permit non-GHG emissions; as a result, we                States that request and receive a                     revision and we approve that SIP revision.
                                              solicit comment on whether EPA should also               delegation will be responsible for                    CAA section 110(c)(1). Under the present
                                              be the permitting authority for the non-GHG              issuing both the GHG part and the non-                circumstances, we will act on a SIP revision
                                              portion of the permit for these latter sources.          GHG part of the permit, and that will                 to apply the PSD program to GHG sources as
                                                 We propose that the FIP consist of the                moot commenters’ concerns about split                 quickly as possible. Upon request of the state,
                                              regulatory provisions included in 40 CFR                 permitting. EPA’s most recent                         we will parallel-process the SIP submittal.
                                              52.21, except that the applicability provision           information is that of the seven states               That is, if the state submits to us the draft SIP
                                              would include a limitation so that it applies                                                                  submittal for which the state intends to hold
                                              for purposes of this rulemaking only to
                                                                                                       for which EPA is promulgating a FIP,
                                                                                                       four states have indicated to EPA that                a hearing, we will propose the draft SIP
                                              GHGs.                                                                                                          submittal for approval and open a comment
                                                                                                       they intend to seek a delegation                      period during the same time as the state
                                              75 FR 53889/3 to 53,890/1.                               (Arizona, Idaho, Kansas, and Oregon)                  hearing. If the SIP submittal that the state
                                                 We are finalizing the FIP as we                       and a fifth has indicated that it is                  ultimately submits to us is substantially
                                              described it in the proposal, for the                    considering seeking a delegation                      similar to the draft SIP submittal, we will
                                              same reasons that we indicated in the                    (Arkansas).15                                         proceed to take final action without a further
                                              proposal, all as quoted earlier in this                     In addition, beginning on July 1, 2011,            proposal or comment period. If we approve
                                              preamble.                                                those states without authority to                     such a SIP revision, we will at the same time
                                                 State, industry, and environmental                    regulate GHG may not be able to issue                 rescind the FIP.
                                              commenters questioned how having                         PSD permits for non-GHG pollutants to                 75 FR 53889/2–3.
                                              EPA issue the GHG portions of a permit                   sources that are major only because of
                                              while allowing states under a FIP to                                                                             We continue to have these same
                                                                                                       their GHG emissions. This is because
                                              continue to be responsible for issuing                                                                         intentions. Thus, we reaffirm our
                                                                                                       under the state’s approved SIP, these
                                              the non-GHG portions of a PSD permit                                                                           intention to leave the GHG PSD FIP in
                                                                                                       sources are not major sources. In this
                                              will work in practice. Commenters                                                                              place only as long as is necessary for the
                                                                                                       circumstance, EPA will also be the PSD
                                              raised concerns about the potential for                                                                        state to submit and for EPA to approve
                                                                                                       permitting authority for the non-GHG
                                              a source to be ‘‘faced with conflicting                                                                        a SIP revision that includes PSD
                                                                                                       pollutants, but, as discussed in detail
                                              requirements and the need to mediate                     earlier in this preamble, EPA intends to              permitting for GHG-emitting sources. As
                                              among permit engineers making BACT                       work closely with each state to develop               discussed in more detail later in this
                                              decisions.’’                                             mutually acceptable approaches—                       preamble, EPA continues to believe that
                                                 We appreciate the commenters’                         including delegation of this authority                the states should remain the primary
                                              concern. We well recognize that                          where possible—to maximize the                        permitting authority.
                                              dividing permitting responsibilities                     opportunity for the state to assume as                E. Primacy of SIP Process
                                              between two authorities—EPA for GHGs                     much of the permitting responsibilities
                                              and the state for all other pollutants—                                                                           In the FIP proposal we stated,
                                                                                                       as possible.
                                              will require close coordination between                     Finally, we are providing regulatory                 This proposal [to promulgate a FIP] is
                                              the two authorities to avoid duplication,                language to address Oregon. Oregon’s                  secondary to our overarching goal, which is
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                                              conflicting determinations, and delays.                  EPA-approved PSD SIP differs from the                 to assure that in every instance, it will be the
                                              We note that this situation is not                                                                             state that will be that permitting authority.
                                                                                                       federal program with respect to which
                                                                                                                                                             EPA continues to recognize that the states are
                                              without precedent. In many instances,                    sources are subject to PSD. EPA is                    best suited to the task of permitting because
                                              EPA has been the PSD permitting                          promulgating a FIP for Oregon that is                 they and their sources have experience
                                              authority but the state has accepted a                   consistent with the intent of the                     working together in the state PSD program to
                                              delegation for parts of the PSD program,                                                                       process permit applications. EPA seeks to
                                              so that a source has had to go to both                     15 McCarthy   Declaration, pp. 136–38, Table II.    remain solely in its primary role of providing



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                                              82252            Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations

                                              guidance and acting as a resource for the                same reasons. Thus, we continue to                    entity is defined as: (1) A small business
                                              states as they make the various required                 believe that this action is necessary to              that is a small industrial entity as
                                              permitting decisions for GHG emissions.                  ensure that sources in states with                    defined in the U.S. Small Business
                                                 Accordingly, beginning immediately we
                                                                                                       inadequate SIPs can obtain the                        Administration (SBA) size standards
                                              intend to work closely with the states—as we
                                              have already begun to do since earlier in the            necessary PSD permits for their GHG                   (see 13 CFR 121.201); (2) a small
                                              year—to help them promptly develop and                   emissions. We have worked closely with                governmental jurisdiction that is a
                                              submit to us their corrective SIP revisions              states to establish reasonable deadlines              government of a city, county, town,
                                              that extend their PSD program to GHG-                    for submitting revised SIPs and are                   school district, or special district with a
                                              emitting sources. Moreover, we intend to                 finalizing this FIP based on deadlines                population of less than 50,000; or (3) a
                                              promptly act on their SIP submittals. Again,             agreed to by the affected states. We will             small organization that is any not-for-
                                              EPA’s goal is to have each and every affected                                                                  profit enterprise that is independently
                                                                                                       continue to work with states, as we have
                                              state have in place the necessary permitting
                                                                                                       done throughout the rulemaking                        owned and operated and is not
                                              authorities by the time businesses seeking
                                              construction permits need to have their                  process, to assist in development and                 dominant in its field.
                                              applications processed and the permits                   expedite review of revised SIPs. In the                 Although this rule would lead to
                                              issued—and to achieve that outcome by                    meantime, however, this FIP is                        federal permitting requirements for
                                              means of engaging with the states directly               necessary for the seven states identified             certain sources, those sources are large
                                              through a concerted process of consultation              here in order to provide a permitting                 emitters of GHGs and tend to be large
                                              and support.                                             authority until an adequate SIP is                    sources. After considering the economic
                                                 EPA is taking up the additional task of                                                                     impacts of this rule on small entities, I
                                              proposing this FIP and the companion SIP                 submitted and approved.
                                                                                                                                                             certify that this action will not have a
                                              Call action only because the Agency believes             IV. Statutory and Executive Order
                                              it is compelled to do so by the need to assure                                                                 significant economic impact on a
                                                                                                       Reviews                                               substantial number of small entities.
                                              businesses, to the maximum extent possible
                                              and as promptly as possible, that a permitting           A. Executive Order 12866—Regulatory                   This final rule will not impose any
                                              authority is available to process PSD permit             Planning and Review                                   requirements on small entities.
                                              applications for GHG-emitting sources once
                                              they become subject to PSD requirements on                  Under Executive Order (EO) 12866                   D. Unfunded Mandates Reform Act
                                              January 2, 2011.                                         (58 FR 51735, October 4, 1993), this                     This action contains no federal
                                                 In order to provide that assurance, we are            action is a ‘‘significant regulatory action’’         mandates under the provisions of Title
                                              obligated to recognize, as both states and the           because it raises novel legal or policy               II of the Unfunded Mandates Reform
                                              regulated community already do, that there               issues. Accordingly, EPA submitted this               Act of 1995 (UMRA, 2 U.S.C. 1531–
                                              may be circumstances in which states are                 action to the Office of Management and
                                              simply unable to develop and submit those                                                                      1538) for state, local or tribal
                                              SIP revisions by January 2, 2011, or for some
                                                                                                       Budget (OMB) for review under EO                      governments or the private section. The
                                              period of time beyond that date. As a result,            12866 and any changes made in                         action imposes no enforceable duty on
                                              absent further action by EPA, those states’              response to OMB recommendations                       any state, local or tribal governments or
                                              affected sources confront the risk that they             have been documented in the docket for                the private sector. This action merely
                                              may have to put on hold their plans to                   this action.                                          prescribes EPA’s action for states that
                                              construct or modify, a risk that may have                                                                      have not met their existing obligation
                                              adverse consequences for the economy.                    B. Paperwork Reduction Act
                                                                                                                                                             for PSD SIP submittal. Thus, this rule is
                                                 Given these exigent circumstances, EPA                  This action does not impose any new
                                              proposes this plan, within the limits of our                                                                   not subject to the requirements of
                                                                                                       information collection burden. OMB has                sections 202 or 205 of UMRA.
                                              power, with the intent to make a back-up
                                              permitting authority available—and to send a
                                                                                                       previously approved the information                      This action is also not subject to the
                                              signal of assurance expeditiously in order to            collection requirements contained in the              requirements of section 203 of UMRA
                                              reduce uncertainty and thus facilitate                   existing regulations for PSD (see, e.g., 40           because it contains no regulatory
                                              businesses’ planning. Within the design of               CFR 52.21) and title V (see 40 CFR parts              requirements that might significantly or
                                              the CAA, it is EPA that must fill that role of           70 and 71) under the provisions of the                uniquely affect small governments. This
                                              back-up permitting authority. This FIP and               Paperwork Reduction Act, 44 U.S.C.                    action merely prescribes EPA’s action
                                              the companion SIP Call action fulfill the                3501 et seq. and has assigned OMB                     for states that have not met their
                                              CAA requirements to establish EPA in that                control number 2060–0003 and OMB
                                              role.                                                                                                          existing obligation for PSD SIP
                                                 At the same time, we propose these actions
                                                                                                       control number 2060–0336 respectively.                submittal.
                                              with the intent that states retain as much               The OMB control numbers for EPA’s
                                                                                                       regulations in 40 CFR are listed in 40                E. Executive Order 13132—Federalism
                                              discretion as possible in the hand of the
                                              states. In the SIP Call rulemaking, EPA                  CFR part 9.                                             This action does not have federalism
                                              proposes that states may choose the deadline                                                                   implications. It will not have substantial
                                              they consider reasonable for submission of               C. Regulatory Flexibility Act
                                                                                                                                                             direct effects on the states, on the
                                              their corrective SIP revision. If, under CAA                The Regulatory Flexibility Act (RFA)               relationship between the national
                                              requirements, we are compelled to                        generally requires an agency to prepare               government and the states, or on the
                                              promulgate a FIP, we invite the affected state           a regulatory flexibility analysis of any              distribution of power and
                                              to accept a delegation of authority to
                                              implement that FIP, so that it will still be the
                                                                                                       rule subject to notice and comment                    responsibilities among the various
                                              state that processes the permit applications,            rulemaking requirements under the                     levels of government, as specified in
                                              albeit operating under federal law. In                   Administrative Procedure Act or any                   Executive Order 13132. This action
                                              addition, if we are compelled to issue a FIP,            other statute unless the agency certifies             merely prescribes EPA’s action for states
                                              we intend to continue to work closely with               that the rule will not have a significant             that have not met their existing
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                                              the state to assist in developing and                    economic impact on a substantial                      obligation for GHG PSD SIP submittal.
                                              submitting for approval its corrective SIP               number of small entities. Small entities              Thus, Executive Order 13132 does not
                                              revision, so as to minimize the amount of                include small businesses, small                       apply to this action.
                                              time that the FIP must remain in place.
                                                                                                       organizations, and small governmental                   In the spirit of Executive Order 13132,
                                              75 FR at 53890/1–2.                                      jurisdictions.                                        and consistent with EPA policy to
                                                In this rulemaking, we continue to                        For purposes of assessing the impacts              promote communications between EPA
                                              have the same intentions and for the                     of this notice on small entities, small               and state and local governments, EPA


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                                                               Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations                                         82253

                                              specifically solicited comment on the                    J. Executive Order 12898—Federal                      of which final actions by EPA. This
                                              proposal for this action from state and                  Actions To Address Environmental                      section provides, in part, that petitions
                                              local officials.                                         Justice in Minority Populations and                   for review must be filed in the Court of
                                                                                                       Low-Income Populations                                Appeals for the District of Columbia
                                              F. Executive Order 13175—Consultation
                                                                                                          Executive Order 12898 (59 FR 7629,                 Circuit: (i) When the agency action
                                              and Coordination With Indian Tribal                                                                            consists of ‘‘nationally applicable
                                              Governments                                              February 16, 1994) establishes federal
                                                                                                       executive policy on environmental                     regulations promulgated, or final actions
                                                This action does not have tribal                       justice. Its main provision directs                   taken, by the Administrator,’’ or (ii)
                                              implications, as specified in Executive                  Federal agencies, to the greatest extent              when such action is locally or regionally
                                              Order 13175 (65 FR 67249, November 9,                    practicable and permitted by law, to                  applicable, if ‘‘such action is based on a
                                              2000). This action does not impose a FIP                 make environmental justice part of their              determination of nationwide scope or
                                              in any tribal area. Thus, Executive Order                mission by identifying and addressing,                effect and if in taking such action the
                                              13175 does not apply to this action.                     as appropriate, disproportionately high               Administrator finds and publishes that
                                                                                                       and adverse human health or                           such action is based on such a
                                              G. Executive Order 13045—Protection of
                                                                                                       environmental effects of their programs,              determination.’’
                                              Children From Environmental Health
                                                                                                       policies, and activities on minority                     This rule is nationally applicable
                                              Risks and Safety Risks                                                                                         under CAA section 307(b)(1). The
                                                                                                       populations and low-income
                                                EPA interprets E.O. 13045 (62 FR                                                                             circumstances that have led to this
                                                                                                       populations in the U.S.
                                              19885, April 23, 1997) as applying only                     EPA has determined that this final                 rulemaking are national in scope and
                                              to those regulatory actions that concern                 rule will not have disproportionately                 are substantially the same for each
                                              health or safety risks, such that the                    high and adverse human health or                      affected state. They include EPA’s
                                              analysis required under section 5–501 of                 environmental effects on minority or                  promulgation of nationally applicable
                                              the E.O. has the potential to influence                  low-income populations because it does                GHG requirements that, in conjunction
                                              the regulation. This action is not subject               not affect the level of protection                    with the operation of the CAA PSD
                                              to E.O. 13045 because it merely                          provided to human health or the                       provisions, have resulted in GHG-
                                              prescribes EPA’s action for states that do               environment. This rule merely                         emitting sources becoming subject to
                                              not meet their existing obligation for                   prescribes EPA’s action for states that               PSD; as well as EPA’s finding of
                                              PSD SIP submittal.                                       have not met their existing obligation                substantial SIP inadequacy, imposition
                                                                                                       for PSD SIP submittal.                                of a SIP call, and establishment of a
                                              H. Executive Order 13211—Actions
                                                                                                                                                             deadline for SIP submittal. Moreover, in
                                              Concerning Regulations That                              K. Determination Under Section 307(d)                 this rule, EPA is applying uniform
                                              Significantly Affect Energy Supply,
                                                                                                         Pursuant to section 307(d)(1)(B) of the             principles for promulgating the FIP for
                                              Distribution, or Use
                                                                                                       CAA, this action is subject to the                    each of the affected states, concerning,
                                                This action is not a ‘‘significant energy              provisions of section 307(d). Section                 e.g., timing (that is, that EPA is
                                              action’’ as defined in Executive Order                   307(d)(1)(B) provides that the provisions             promulgating the FIP for each affected
                                              13211 (66 FR 28355 (May 22, 2001)),                      of section 307(d) apply to ‘‘the                      state immediately) and scope (that is,
                                              because it is not likely to have a                       promulgation or revision of an                        that EPA is applying the FIP for GHG-
                                              significant adverse effect on the supply,                implementation plan by the                            emitting sources). The FIP for each
                                              distribution, or use of energy. This                     Administrator under section 110(c) of                 affected state has substantially the same,
                                              action merely prescribes EPA’s action                    this Act.’’                                           if not identical, terms. This rulemaking
                                              for states that have not met their                                                                             action is supported by a single
                                              existing obligation for PSD SIP                          L. Congressional Review Act                           administrative record, and does not
                                              submittal.                                                  The Congressional Review Act, 5                    involve factual questions unique to the
                                                                                                       U.S.C. 801 et seq., as added by the Small             different affected states. In addition, this
                                              I. National Technology Transfer and
                                                                                                       Business Regulatory Enforcement                       rule applies to multiple States across the
                                              Advancement Act
                                                                                                       Fairness Act of 1996, generally provides              country, and in several judicial circuits.
                                                 Section 12(d) of the National                         that before a rule may take effect, the                  For similar reasons, this rule is based
                                              Technology Transfer and Advancement                      agency promulgating the rule must                     on determinations of nationwide scope
                                              Act of 1995 (‘‘NTTAA’’), Public Law                      submit a rule report, which includes a                or effect. For each of the seven affected
                                              104–113, 12(d) (15 U.S.C. 272 note)                      copy of the rule, to each House of the                States, EPA is determining that it is
                                              directs EPA to use voluntary consensus                   Congress and to the Comptroller General               appropriate to promulgate the FIP
                                              standards in its regulatory activities                   of the United States. EPA will submit a               immediately and to apply it to GHG-
                                              unless to do so would be inconsistent                    report containing this rule and other                 emitting sources, but not other sources.
                                              with applicable law or otherwise                         required information to the U.S. Senate,              These determinations are the same for
                                              impractical. Voluntary consensus                         the U.S. House of Representatives, and                each of the states. The other provisions
                                              standards are technical standards (e.g.,                 the Comptroller General of the United                 of the FIP are substantially the same, if
                                              materials specifications, test methods,                  States prior to publication of the rule in            not identical, for each affected state.
                                              sampling procedures, and business                        the Federal Register. A major rule                    Moreover, EPA is making these
                                              practices) that are developed or adopted                 cannot take effect until 60 days after it             determinations and promulgating this
                                              by voluntary consensus standards                         is published in the Federal Register.                 action within the context of nationwide
                                              bodies. NTTAA directs EPA to provide                     This action does not constitute a ‘‘major             rulemakings and interpretation of the
                                              Congress, through OMB, explanations                      rule’’ as defined by 5 U.S.C. 804(2).                 applicable CAA provisions, as noted
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                                              when the Agency decides not to use                       Therefore, this action will be effective              above.
                                              available and applicable voluntary                       December 30, 2010.                                       Thus, under section 307(b)(1) of the
                                              consensus standards.                                                                                           Act, judicial review of this final action
                                                 This rulemaking does not involve                      V. Judicial Review                                    is available by filing of a petition for
                                              technical standards. Therefore, EPA did                    Section 307(b)(1) of the CAA specifies              review in the U.S. Court of Appeals for
                                              not consider the use of any voluntary                    which Federal Courts of Appeal have                   the District of Columbia Circuit by
                                              consensus standards.                                     jurisdiction to hear petitions for review             February 28, 2011. Any such judicial


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                                              82254            Federal Register / Vol. 75, No. 250 / Thursday, December 30, 2010 / Rules and Regulations

                                              review is limited to only those                          § 52.21(b)(49) are incorporated by                    ENVIRONMENTAL PROTECTION
                                              objections that were raised with                         reference, replacing the definition of                AGENCY
                                              reasonable specificity in timely                         ‘‘Regulated air pollutant’’ at OAR 340–
                                              comments. Under section 307(b)(2) of                     200–0020(97), for the purpose of                      40 CFR Parts 52 and 70
                                              the Act, the requirements of this final                  greenhouse gases only;                                [EPA–HQ–OAR–2009–0517; FRL–9245–4]
                                              action may not be challenged later in
                                                                                                          (2) The provisions of § 52.21(q) Public            RIN 2060–AQ63
                                              civil or criminal proceedings brought by
                                                                                                       participation are incorporated by
                                              us to enforce these requirements.
                                                                                                       reference for the purposes of EPA                     Action To Ensure Authority To
                                              VI. Statutory Authority                                  permits issued pursuant to this                       Implement Title V Permitting Programs
                                                 The statutory authority for this action               paragraph; and                                        Under the Greenhouse Gas Tailoring
                                              is provided by sections 110, 165, 301,                      (3) All references to ‘‘Director’’ in the          Rule
                                              and 307(d)(1)(B) of the CAA as amended                   Oregon Department of Environmental                    AGENCY:  Environmental Protection
                                              (42 U.S.C. 7410, 7475, 7601, and                         Quality rules and the Lane Regional Air               Agency (EPA).
                                              7407(d)(1)(B)). This action is subject to                Pollution Authority rules incorporated                ACTION: Final Rule.
                                              section 307(d) of the CAA (42 U.S.C.                     in this paragraph shall mean the EPA
                                              7407(d)).                                                Administrator for the purposes of EPA                 SUMMARY:    The final greenhouse gas
                                              List of Subjects in 40 CFR Part 52                       permits issued pursuant to this                       (GHG) Tailoring Rule includes a step-
                                                                                                       paragraph.                                            by-step implementation strategy for
                                                Air pollution control, Carbon dioxide,                                                                       issuing Federally-enforceable permits to
                                              Carbon dioxide equivalents, Carbon                       ■ 3. Section 52.37 is added to read as                the largest, most environmentally
                                              monoxide, Environmental protection,                      follows:                                              significant sources beginning January 2,
                                              Greenhouse gases, Hydrofluorocarbons,                                                                          2011. In this action, EPA is finalizing its
                                              Incorporation by reference,                              § 52.37 What are the requirements of the
                                                                                                                                                             proposed rulemaking to narrow EPA’s
                                              Intergovernmental relations, Lead,                       Federal Implementation Plans (FIPs) to
                                                                                                       issue permits under the Prevention of
                                                                                                                                                             previous approval of State title V
                                              Methane, Nitrogen dioxide, Nitrous                                                                             operating permit programs that apply
                                              oxide, Ozone, Particulate matter,                        Significant Deterioration requirements to
                                                                                                       sources that emit greenhouse gases?                   (or may apply) to GHG-emitting sources.
                                              Perfluorocarbons, Reporting and                                                                                Specifically, in this final rule, EPA is
                                              recordkeeping requirements, Sulfur                          (a) The requirements of sections 160               narrowing its previous approval of
                                              hexafluoride, Sulfur oxides, Volatile                    through 165 of the Clean Air Act are not              certain State permitting thresholds for
                                              organic compounds.                                       met to the extent the plan, as approved,              GHG emissions so that only sources that
                                                Dated: December 23, 2010.                              of the states listed in paragraph (b) of              equal or exceed the GHG thresholds
                                              Lisa P. Jackson,                                         this section does not apply with respect              established in the final Tailoring Rule
                                              Administrator.                                           to emissions of the pollutant GHGs from               would be covered as major sources by
                                                                                                       certain stationary sources. Therefore,                the Federally-approved programs in the
                                              ■ For the reasons set out in the                         the provisions of § 52.21 except                      affected States. By raising the GHG
                                              preamble, title 40, chapter I of the Code                paragraph (a)(1) are hereby made a part               thresholds that apply title V permitting
                                              of Federal Regulations is amended as                     of the plan for each state listed in                  to major sources in the affected States,
                                              follows:                                                 paragraph (b) of this section for:                    this final rule will reduce the number of
                                                                                                                                                             sources that will be issued Federally-
                                              PART 52—[AMENDED]                                           (1) Beginning January 2, 2011, the                 enforceable title V permits and thereby
                                                                                                       pollutant GHGs from stationary sources                significantly reduce permitting burdens
                                              ■ 1. The authority citation for part 52                  described in § 52.21(b)(49)(iv), and
                                              continues to read as follows:                                                                                  for permitting agencies and sources
                                                                                                          (2) beginning July 1, 2011, in addition            alike in those States.
                                                  Authority: 42 U.S.C. 7401 et seq.
                                                                                                       to the pollutant GHGs from sources                    DATES: This final rule is effective on
                                              ■ 2. Section 52.1987 is revised to read                  described under paragraph (a)(1) of this              December 30, 2010.
                                              as follows:                                              section, stationary sources described in              ADDRESSES: EPA has established a
                                              § 52.1987    Significant deterioration of air            § 52.21(b)(49)(v).                                    docket for this action under Docket ID
                                              quality.                                                    (b) Paragraph (a) of this section                  No. EPA–HQ–OAR–2009–0517. All
                                              *     *     *      *    *                                applies to:                                           documents in the docket are listed on
                                                (d) The requirements of sections 160                                                                         the http://www.regulations.gov Web
                                                                                                          (1) Arizona, Pinal County; Rest of
                                              through 165 of the Clean Air Act are not                                                                       site. Although listed in the index, some
                                                                                                       State (Excludes Maricopa County, Pima                 information is not publicly available,
                                              met for greenhouse gases since the plan
                                              does not include approvable procedures                   County, and Indian Country);                          e.g., CBI or other information whose
                                              for permitting major sources of                             (2) Arkansas;                                      disclosure is restricted by statute.
                                              greenhouse gas emissions. Therefore,                        (3) Florida;                                       Certain other material, such as
                                              the Oregon Department of                                                                                       copyrighted material, is not placed on
                                                                                                          (4) Idaho;                                         the Internet and will be publicly
                                              Environmental Quality rules identified
                                              in paragraph (a) of this section, and the                   (5) Kansas;                                        available only in hard copy form.
                                              Lane Regional Air Pollution Authority                       (6) Wyoming.                                       Publicly available docket materials are
                                              rules identified in paragraph (b) of this                                                                      available either electronically through
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                                                                                                          (c) For purposes of this section, the
                                              section, are hereby incorporated by                                                                            http://www.regulations.gov or in hard
                                                                                                       ‘‘pollutant GHGs’’ refers to the pollutant            copy at the EPA Docket Center EPA/DC,
                                              reference with the following changes
                                              and made part of the applicable plan for                 GHGs, as described in § 52.21(b)(49)(i).              EPA West, Room 3334, 1301
                                              the State of Oregon:                                     [FR Doc. 2010–32784 Filed 12–29–10; 8:45 am]          Constitution Avenue, Northwest,
                                                (1) The definition of ‘‘Regulated NSR                  BILLING CODE 6560–50–P                                Washington, DC. The Public Reading
                                              pollutant’’ at § 52.21(b)(50) and the                                                                          Room is open from 8:30 a.m. to 4:30
                                              definition of ‘‘Subject to regulation’’ at                                                                     p.m., Monday through Friday, excluding


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