[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Notices]
[Page 57168]
[FR Doc No: 2021-22349]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-3564-EM; Docket ID FEMA-2021-0001]

Connecticut; Amendment No. 1 to Notice of an Emergency
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of an emergency declaration for
the State of Connecticut (FEMA-3564-EM), dated August 22, 2021, and
related determinations.

DATES: This amendment was issued August 31, 2021.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the incident
period for this emergency is closed effective August 24, 2021.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-22349 Filed 10-13-21; 8:45 am]
BILLING CODE 9111-23-P


In particular, Texas's recent statement that the CAA PSD provisions are clear by their terms, as a matter of Chevron step 1, that they do not apply to non-NAAQS pollutants, suggests that Texas would have viewed the CAA PSD provisions the same way at the time Texas submitted its PSD program.  As noted earlier, the Texas Attorney General and the Chairman of the Texas Commission on Environmental Quality, who are the joint signatories of Texas's 60-day letter, are of the view that "[t]he only sensible interpretation of the Clean Act" is that PSD applies only to NAAQS pollutants, and not non-NAAQS pollutants.  Texas 60-day letter, p. 4.  Texas has confirmed its reading  -  and clarified that it is based on a Chevron step 1 interpretation - in filings before the D.C. Circuit.  The fact that these high state officials view this reading of the CAA as, again, "[t]he only sensible reading," indicates that in the past, Texas is less likely to have adopted the opposite reading, which would be that the CAA mandates that PSD applies to non-NAAQS pollutants.  Statutory provisions whose meaning is clear on their face, at least to a particular reader, would not be expected to have had a different or uncertain meaning to that same reader at an earlier point in time.  By the same token, Texas's insistence, noted previously, that it does not have the intention or authority to apply PSD to one non-NAAQS in particular, GHGs, suggests that Texas could well have expressed the same view, had the issue arisen, at the time EPA approved Texas's PSD program.
      We further note that Texas itself appears to take the position that an agency's present interpretation of its regulations should be presumed to have been the agency's past interpretation of those regulations, so that Texas's current interpretation that its PSD program does not apply to at least one non-NAAQS, GHGs, should be presumed to be Texas's interpretation of its PSD program in the past, including at the time Texas submitted its program as a SIP revision to EPA and EPA approved it.  Specifically, in its 60-day letter, Texas noted that in the Tailoring Rule, EPA asked states to consider whether their SIPs that include the term "subject to regulation" can be interpreted to incorporate the Tailoring Rule thresholds on grounds that the state interprets that term as being sufficiently open-ended.  75 FR 51,581/2.  Texas stated,
      	In the Tailoring Rule you have asked TCEQ to report to you by August 2, 2010, whether it would "interpret" the undefined phrase "subject to regulation" in TCEQ Rule 116.12 consistent with the newly promulgated definition in EPA Rule 51.166, in all its specifics and particulars.  That is, you have effectively requested that Texas agree to regulate greenhouse gases in the exact manner and method proscribed by the EPA.

      In other words, you have asked Texas to agree that when it promulgated its air quality permitting program rules for pollutants "subject to regulation" in 1993, that Texas really meant to define the term "subject to regulation" as set forth in the dozens of paragraphs and subparagraphs of EPA Rule 51.166, first promulgated in 2010.

Texas 60-day letter, p. 3.  In these statements, Texas appears to reveal Texas's own understanding of the circumstances under which Texas can be said to give the term "subject to regulation" a particular interpretation, and that is if Texas interpreted that term that same way at the time that Texas first promulgated the term in 1993.  By that same logic, Texas's position, as stated in its 60-day letter, that it "has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions" would have applied to "its laws"  -  including the SIP PSD requirements  -  at the time that Texas adopted those rules. Therefore, it seems reasonable to conclude that just as Texas does not currently view its PSD program as applying to all newly regulated non-NAAQS pollutants, Texas did not, at the time it submitted and EPA approved its PSD program, view its PSD program as applying to all newly regulated non-NAAQS pollutants.
      By the same token, Texas's recent statements also confirm that the assurances Texas provided in its 1989 Texas PSD Commitments Letter cannot be interpreted as having committed Texas to apply PSD to all pollutants newly subject to regulation, including non-NAAQS pollutants.  The assurances, by their terms, were phrased generally and did not address the application of PSD to such pollutants; and EPA, in the preamble for the final approval of Texas's PSD SIP, indicated that the scope and binding impact of the assurances were limited.  Texas's recent direct statements that PSD does not cover non-NAAQS pollutants indicates that the generally phrased assurances in the letter, whatever they meant, did not mean that Texas would apply PSD to each newly regulated pollutant, including non-NAAQS pollutants.
      As a result, it stands to reason that at the time Texas submitted its PSD program, Texas did not view the CAA as mandating the application of PSD to at least certain pollutants newly subject to regulation, non-NAAQS pollutants.  But at a minimum, it can be said that Texas's PSD program contained a gap:  EPA required that PSD apply to each pollutant newly subject to regulation, including non-NAAQS pollutants; Texas's program applied only to pollutants already subject to regulation at the time Texas adopted its program, not to subsequently regulated pollutants, including non-NAAQS; and Texas did not address its program's applicability to such pollutants, including how or when its program would so apply.  This gap is significant because it facilitates Texas's current position, with which EPA disagrees, that PSD does not apply to non-NAAQS pollutants.
(2).  Gap Concerning Assurances of Adequate Legal Authority
      Texas's statement in its 60-day letter that it "has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to" apply PSD to GHG-emitting sources also highlights that Texas's PSD program had a gap in its failure to provide "necessary assurances" of adequate legal authority to carry out the PSD program.  Although Texas's letter described obstacles to applying PSD to GHG-emitting sources without first adopting a SIP revision, and did not describe obstacles that precluded Texas from adopting a SIP revision if it chose to do so, Texas's direct statement that it does not have authority to apply PSD to GHGs at least casts doubt on whether Texas has such authority under any circumstances.  Moreover, Texas has never indicated that there has been a recent change that places new limits on its legal authority to carry out the CAA.
      Accordingly, it is possible that at the time that Texas submitted its PSD program, Texas considered itself under limits in its legal authority to apply PSD to each non-NAAQS pollutant.  At a minimum, in light of Texas's recent statement that it does not have authority to apply PSD to at least one newly regulated, non-NAAQS, GHGs, it is apparent that at the time that Texas submitted its PSD program, Texas did not provide the "necessary assurances" that it "will have adequate ... authority under State ... law to carry out such implementation plan (and is not prohibited by any provision of ... State law from carrying out such implementation plan or portion thereof)."  CAA section 110(a)(2)(E)(i) (emphasis added).  "[C]arrying out such implementation plan" includes meeting all CAA requirements applicable to the plan and, in the case of a PSD SIP program, that includes applying PSD to each pollutant newly subject to regulation, including non-NAAQS pollutants.
2.  Flaws in PSD Program
      The Texas PSD program's gaps  -  which are, again, that Texas did not address the applicability of PSD to all pollutants newly subject to regulation, including non-NAAQS pollutants; and Texas did not provide assurances of adequate legal authority to do so  -  mean that the state's PSD program has flaws.  These flaws were present at the time that EPA approved Texas's PSD program.  Moreover, these flaws are significant.  They have figured prominently into the present situation in which EPA takes the position that Texas is obligated under the CAA and EPA regulations to apply its PSD program to a newly regulated pollutant - GHGs - but Texas takes the opposite position.
   a. Comments on the Flaws in PSD Program
      Several commenters, including both the Texas Commission on Environmental Quality (TCEQ) and the Texas Attorney General, object to EPA's determination that the Texas SIP is flawed.  TCEQ comments that nothing in "...the CAA or federal PSD rules require that state PSD programs apply to pollutants newly subject to regulation."  The Texas Attorney General states that 40 CFR § 51.166 does not require automatic updating of SIPs to incorporate pollutants that subsequently become subject to regulation.  The Texas Attorney General adds that the state is not required to provide legal assurances about matters not included in the SIP; rather, that the state need show only that it has legal authority to carry out the SIP.
   b. Response to Comments
      EPA disagrees with these comments.  Contrary to the TCEQ's comments, as discussed elsewhere in this rulemaking preamble, the PSD requirements in the CAA and regulations do require that PSD SIPs address the applicability of PSD to pollutants newly subject to regulation.  As discussed previously, the CAA PSD provisions and EPA's PSD regulations are clear that PSD applies to each newly regulated pollutant, whether a NAAQS pollutant or a non-NAAQS pollutant.  Moreover, the CAA is clear that SIPs must include provisions to assure that CAA requirements are met.  See CAA section 110(a)(2)(J) (each SIP must "meet the applicable requirements of ... part C ... (relating to prevention of significant deterioration of air quality...)"; CAA section 161 ("each applicable implementation plan shall contain emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant deterioration of air quality in each region [to which PSD applies]").  Accordingly, each PSD SIP must include provisions that address how PSD will apply to pollutants newly subject to regulation.  As noted above, there are several different ways for SIP to address PSD applicability to such pollutants, but SIPs must adopt one of those ways.
      With respect to the Texas Attorney General, the comment that EPA's regulations do not require automatic updating of SIPs to incorporate such pollutants misses the point.  In the Interim Final Rule and the proposal, EPA did not identify the gap in Texas's SIP PSD provisions as based on the lack of automatic updating to apply PSD to each pollutant newly subject to regulation.  Rather, EPA identified the gap as the failure of the State, at the time it submitted and EPA approved the PSD program, to address such pollutants.  The State could have specifically acknowledged the issue of the applicability of PSD to newly regulated pollutants and addressed that issue in several different ways.  Providing an automatic updating mechanism is one way, which is what most of the other states do.  Second, the state could have committed, in either the SIP itself or in a letter accompanying the SIP submittal, that the State would adopt and submit for approval SIP revisions to apply PSD to newly regulated pollutants, and the state could have indicated a schedule for it to do so.  Third, it is possible that more general assurances by the state to address the issue could have passed muster.  In addition, there may be other ways to address this issue.  The record does not indicate that Texas specifically identified the issue or identified any ways that Texas would address the issue.    Moreover, as discussed earlier in this preamble, Texas failed to demonstrate that it had adequate legal authority to regulate these pollutants.
      EPA also disagrees with the Texas Attorney General's argument that the state is not required to provide legal assurances about matters not included in the SIP; and rather, that the state need show only that it has legal authority to carry out the SIP.  The requirement under CAA section 110(a)(2)(E)(i) that each SIP provide "necessary assurances that the State ... will have adequate ... authority under State ... law to carry out such implementation plan..." must be read in the context of the CAA mandate that SIPs meet all CAA requirements.  That is, just as the SIP must meet all CAA requirements, the state must also provide assurances that the state has the legal authority to carry out a SIP that meets all CAA requirements.  For the reasons noted above, Texas's SIP was required to address the applicability of PSD to each pollutant newly subject to regulation, and as a result, Texas was required to provide assurances that it had the legal authority to apply PSD to each pollutant newly subject to regulation.  As a result, if the SIP did address such an application of PSD, then the State would have legal authority to carry out that SIP.
3.  EPA's Error in Approving Texas's PSD Program
 	In this rulemaking, EPA is "determin[ing]" that EPA's action fully approving Texas's PSD program was "in error" within the meaning of CAA section 110(k)(6).  This section contains EPA's basis for that determination.
a.  CAA Section 110(k)(6) Error Correction
      Under the familiar Chevron two-step framework for interpreting administrative statutes, an agency must, under Chevron step 1, determine whether "Congress has directly spoken to the precise question at issue."  If so, "the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."  However, under Chevron step 2, if "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."  Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 842 - 43 (1984).
      As noted previously, the term "error" in CAA section 110(k)(6) is not defined and, as a result, should be given its ordinary, everyday meaning.  The dictionary definition of "error" is "a mistake" or "the state or condition of being wrong in conduct or judgment," Oxford American College Dictionary 467 (2d ed. 2007); or "1) an act, assertion, or belief that unintentionally deviates from what is correct, right or true 2) the state of having false knowledge . . . 4) a mistake . . . ."  Webster's II New Riverside University Dictionary 442 (Houghton Mifflin Co. 1988).  These definitions are broad, and include all unintentional, incorrect or wrong actions or mistakes.
      Moreover, CAA section 110(k)(6) authorizes EPA to "determine[]" that its action was in error, and does not direct or constrain that determination in any manner.  That is, the provision does not identify any factors that EPA must, or may not, consider in making the determination.  This further indicates that this provision confers broad discretion upon EPA.
b.  Gaps in Texas PSD Program.
      As previously discussed, the Texas SIP PSD program was flawed because it contained gaps:  Texas did not address the applicability of PSD to all pollutants newly subject to regulation, including non-NAAQS pollutants; and Texas did not provide assurances of adequate legal authority to do so.  EPA did not address these gaps in its action on Texas SIP PSD program and instead, EPA fully approved the PSD program.
      Therefore, EPA's action in fully approving Texas's SIP PSD program in the face of these flaws was "in error" under CAA section 110(k)(6), in accordance with Chevron step 1.  "[E]rror" should be defined broadly to include any mistake, and approval of a flawed SIP is a mistake.  Moreover, this flaw is significant because it affects the applicability of the PSD program to a pollutant and, as a result, to an entire set of sources.
      Even if the term "error" is not considered unambiguously to encompass, under Chevron step 1, the mistake that EPA made in approving the Texas PSD SIP, and instead is considered ambiguous on this question, then under Chevron step 2 EPA has sufficient discretion to determine that its approval action meets the definition of "error."  That is, under CAA section 110(k)(6), the breadth of the term "error" and of the authorization for EPA to "determine[]" when it made an error, mean that EPA has sufficient discretion to identify the gaps in Texas's PSD program  as flawed and to identify EPA's action in approving Texas's PSD SIP in the face of those flaws as an error.
c.  Comments and responses on the use of CAA §110(k)(6)
Comment:  One commenter supported EPA's use of CAA section §110(k)(6) to correct its previous approval of the Texas PSD program.  This commenter asserted that the use of this mechanism is appropriate in this case, where serious flaws in Texas's SIP have become glaringly apparent, and, if left uncorrected, would cause immediate harm..  EPA agrees with this commenter's assessment that this action is necessary to correct this error in the Texas program.
      Several other commenters, however, challenged the use of section 110(k)(6) in this instance.  Commenters stated that section 110(k)(6) of the Act has been understood and was intended by Congress to be used as authority to make corrections of a "technical" or ministerial nature, such as "typographical errors."  This section was not, according to commenters intended as a means to make unilateral, substantive changes in SIPs or major policy changes.  These commenters view EPA's action here as directly contrary to the Act's cooperative federalism scheme.
Response:  For the reasons noted earlier in this preamble, the natural meaning of the term "error" in the error correction provision is broad and as a result, the provision applies by its terms to any mistake.  The explicit legislative history of the provision  -  what Congress said in the various reports and statements accompanying its passages - is sparse and does not illuminate its meaning.  Because there is nothing in the statute or legislative history that suggests that Congress intended a meaning narrower than the natural meaning of the term, the natural meaning of the term controls.  Commenters' assertions that this provision is limited to "technical" errors or "typographical errors" are conclusory and wholly unsupported.
	For the reasons discussed elsewhere in this preamble, Texas's SIP was flawed and as a result, EPA's action in approving that flawed SIP was in error.
      As a result, this rulemaking action is simply the correction of an error, as authorized under CAA §110(k)(6).  Contrary to some comments, this action is not based on a policy shift in EPA's administration of the PSD program.  Nor does this action upset federalism concerns or constitute a claim of authority to unilaterally revise any action on any SIP submittal.  EPA does not read section 110(k)(6) to provide unlimited discretion to act on SIP submissions, only to provide authority to make error corrections.
Comment:  Commenters went on to assert that other historical uses of CAA section 110(k)(6) were uncontroversial edits to remove federal enforceability of regulatory requirements that had been included or retained inadvertently and were  made at the state's request.  In contrast, according to these commenters, this rule imposes new requirements contrary to the state's wishes.
Response:  EPA's previous use of the error correction provision makes clear that EPA has corrected errors many years after they occurred, and that EPA has corrected errors that are broader than merely technical or typographical errors.  Moreover, EPA's most recent use of the error correction provision was in the PSD Narrowing Rule, in which EPA again corrected errors in SIP approvals that occurred many years ago, and which relied on as broad an application of section 110(k)(6) as in the present rulemaking.  Moreover, in the GHG PSD Narrowing Rule, EPA relied on the error correction mechanism without having first been asked to do so by some of the affected states, and, in fact, in the face of negative comments by some of the affected states.  Even so, the PSD Narrowing Rule was not challenged in Court by any party.
      In any event, for the reasons noted above, EPA's action in this rulemaking qualifies as an error correction within the meaning of CAA section 110(k)(6).  Whether the affected state  -  or any other party - agrees or disagrees that the SIP that is the subject of the error correction is flawed is not a criteria under CAA section 110(k)(6).
Comment:  A commenter raised several concerns about EPA's interpretation of other provisions of CAA section 110(k)(6).  For convenience, the relevant provisions state: "Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State."
      A commenter focused on the requirement that EPA's action must be "in the same manner" as the action that EPA is correcting, and argued that this requirement limits EPA to, as a substantive matter, applying the same standard to Texas's SIP today as it did to the SIP when it was approved in 1992 and using the same record; and as a procedural matter, taking the same action, which, in this case, prevents EPA from converting an approval to a disapproval.
Response:  EPA disagrees with this reading of the phrase "in the same manner."  This phrase is not defined in section 110(k)(6).  As a matter of Chevron step 1, or, in the alternative, Chevron step 2, the phrase refers to Administrative Procedure Act or, if applicable, CAA section 307(d) procedures.  Thus, if the original action were a notice-and-comment rulemaking under the Administrative Procedure Act, then the error correction must follow the same procedure.  We see no basis for reading the phrase "in the same manner" more narrowly to limit an error correction of an approval to be only another approval, and not a disapproval.  That strained reading is inconsistent with the purpose of the section, which is to allow for the correction of errors, a process that may well require reversing the initial action if found to be in error.  Although EPA sees no basis for the substantive requirements that the commenter reads into the phrase, the record for the present action  -  which includes the relevant documents in the record for the 1992 approval  -  makes clear that EPA's 1992 action was in error, and nothing in CAA section 110(k)(6) limits the record for an error correction more narrowly.
Comment:  A commenter argued that EPA ignored the phrase "revise such action."  The commenter believes that section 110(k)(6) affords EPA no discretion to "revise" an approval action into a disapproval but instead limits the Agency to revising the contents of "such action" that it previously undertook.  The commenter asserted that EPA does not "revise" an action by substituting another action for it; rather, EPA must take the same type of action, a reading reinforced by the requirement that the Agency act "in the same manner as the [original action]."  The EPA may not "reconsider" or "replace" a SIP-related action.  The commenter indicated that in this way, section 110(k)(6) is not a mechanism for revisiting a decision but for correcting mistakes in an action  -  using this section to reverse an approval offends both the participation requirements and the principles of the Act's SIP provisions.
Response: Section 110(k)(6) authorizes EPA to "revise" the action it determines to be in error "as appropriate."  The term "revise" is not defined in section 110(k)(6).  Its natural meaning is to "change" or "modify."  Webster's II New Riverside University Dictionary (1988) at 1005.  As a matter of Chevron step 1, or, in the alternative, Chevron step 2, the term is broad enough to encompass changing or modifying an approval to a disapproval.  This is particularly so in light of the authorization under section 110(k)(6) to revise the action in error "as appropriate."  Used in this context, the term "appropriate" indicates EPA is under a constraint of reasonableness in revising the action, but is not under the other constraints that commenter suggests.  Thus, if EPA has a basis for revising an approval to a disapproval, then EPA may do so on grounds that this type of revision is "appropriate."
Comment:  A commenter stated that EPA ignored the phrase "as appropriate."  The commenter stated that this language serves to "keep EPA within bounds" and explained that EPA may revise an earlier action only "as appropriate" to correct its error in undertaking the earlier action, and not to effect a change in policy.  The commenter added the following reasons (which are discussed further in other sections of this document) that EPA's actions are not appropriate:  (i) It is not "appropriate" to single out Texas's SIP submission for disapproval based on a purported deficiency that is present in other states' SIPs.  (ii) It is not "appropriate" to exercise section 110(k)(6)'s error correction provisions where EPA is simultaneously exercising its powers under section 110(k)(5), which affords states procedural protections EPA has refused to afford under section 110(k)(6).
Response:  The term "as appropriate" should be viewed as highlighting the significant discretion that EPA has under the error correction provision to "revise" the action it found to be in error, as discussed earlier in this preamble.  EPA responds elsewhere in this rulemaking preamble to the specific reasons the commenter gives as to why the commenter believes EPA's action was not appropriate.  It should be noted here that the various considerations the commenter cites would suggest the commenter's agreement that the term "appropriate" allows EPA to consider a wide range of factors, that is, to exercise broad discretion.
Comment:  One commenter questioned whether EPA had made a mistake because the action taken to approve the SIP was what EPA intended to do and was not done unintentionally.
Response:  EPA acted purposefully in fully approving the Texas SIP, but that does not mean that the full approval did not carry any element of an inadvertent error.  As noted elsewhere in this rulemaking preamble, EPA and Texas both failed to look down the road and recognize that in all likelihood, EPA would newly subject additional pollutants to regulation, and thereby trigger the application of PSD to those additional pollutants, so that Texas's SIP needed to  -  but did not  -  address that situation.
c.  Alternative Basis for Error Correction
      As explained previously, we view Texas's recent statements that the CAA does not apply to non-NAAQS pollutants and that Texas has neither the authority nor the intention to apply PSD to GHGs as an indication that at the time Texas submitted its PSD program, Texas did not address the applicability of its program to pollutants newly subject to regulation or provide assurances that it had legal authority to apply its program to such pollutants.  Absent specific evidence to the contrary, we are not inclined to conclude that at the time EPA approved the Texas PSD program in 1992, Texas in fact had filled those gaps  -  by, for example, providing assurances that it would apply PSD to each newly regulated non-NAAQS pollutants and had the legal authority to do so - but that more recently, Texas has failed to comply with those assurances.  The CAA is based on a partnership between the states and the federal government, and we think it more consonant with the principles of that partnership to interpret the evidence as indicating that Texas never addressed the gap or provided the requisite assurances.
      However, in the alternative, if one were to conclude that during the course of Texas's submittal of, and EPA's action on, the state's PSD program, Texas did in fact, address the applicability of its program to newly regulated pollutants and did in fact provide the requisite assurances, so that no gaps in Texas's PSD program existed at that time, then Texas's recent statements would amount to failing to comply with, or even rescinding, those assurances.  Under these circumstances, EPA would still consider its previous approval of Texas's PSD SIP to have been in error.  This is because if Texas should be considered to have addressed the issue and to have provided the appropriate assurances, then EPA should be considered to have based its approval on those assurances.  For example, EPA stated in approving the Texas PSD program that EPA was relying on the 1989 Texas PSD Commitments Letter.  Rescinding or failing to comply with those assurances  -  if that is what Texas is considered to have done - would eliminate the basis for EPA's approval.  Compare CAA section 110(k)(4) (authorizing EPA to approve a SIP revision based on a commitment by the state to adopt certain measures by a date certain, but if the state does not do so, then the conditional approval is treated as a disapproval).
C.  Error Correction:  Conversion of Previous Approval to Partial Approval and Partial Disapproval
      Under CAA section 110(k)(6), once EPA determines that its previous action approving a SIP revision was in error, EPA "may ... revise such action as appropriate without requiring any further submission from the State. . . ."  Under this provision, EPA may revise its previous full approval of Texas's PSD program as appropriate, without requiring any submission from Texas.
      This provision offers EPA a great deal of discretion in revising its previous action.  For one thing, the use of the term "may" means that this provision simply authorizes, and does not require, EPA to revise its previous action even after EPA has determined the error, and that, in turn, implies that EPA has discretion in determining how to revise its previous action.  Moreover, if EPA does decide to revise its previous action, EPA may do so in any way that is "appropriate."  The term "appropriate" offers EPA significant latitude in deciding what type of revision to do.
	Here, EPA is revising its previous full approval of Texas's PSD program to be a partial approval and  partial disapproval.  Specifically, EPA is retaining the approval of Texas's PSD program to the extent of the pollutants that the PSD program already does cover.  This amounts to a partial approval.  In addition, EPA is disapproving the Texas PSD program to the extent it has not addressed the applicability of its PSD program to each pollutant newly subject to regulation, including non-NAAQS pollutants, and because it has not provided assurances of adequate legal authority to apply its PSD program to such sources.
D.  Reconsideration Under CAA Section 301, Other CAA Provisions, and Case Law
      As an alternative to the error correction provision of CAA section 110(k)(6), EPA is using its inherent administrative authority to reconsider its prior approval actions as a basis for revising its previous full approval of the Texas PSD program to a partial approval and partial disapproval.  This authority lies in CAA section 301(a), read in conjunction with CAA section 110 and case law holding that an agency has inherent authority to reconsider its prior actions.
      As noted earlier, EPA approved the Texas PSD program by notice dated June 24, 1992, 57 FR 28,093, under the authority of CAA section 110(k)(3)-(4).  These provisions authorize EPA to approve a SIP submittal "as a whole," "approve [the SIP submittal] in part and disapprove [it] in part," or issue a "conditional approval" of a SIP submittal.  EPA issued a full approval under CAA section 110(k)(3).
      In its approval action under that provision, EPA retained inherent authority to revise that action.  The courts have found that an administrative agency has the inherent authority to reconsider its decisions, unless Congress specifically proscribes the agency's discretion to do so.  See, e.g., Gun South, Inc. v. Brady, 877 F.2d 858, 862 (11th Cir. 1989) (holding that agencies have implied authority to reconsider and rectify errors even though the applicable statute and regulations do not provide expressly for such reconsideration); Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir. 1980) ("Administrative agencies have an inherent authority to reconsider their own decisions, since the power to decide in the first instance carries with it the power to reconsider").
      Section 301(a) of the CAA, read in conjunction with CAA section 110(k)(3) and the case law just described, provides statutory authority for EPA's reconsideration action in this rulemaking.  Section 301(a) authorizes EPA "to prescribe such regulations as are necessary to carry out [EPA's] functions" under the CAA.  Reconsidering prior rulemakings, when necessary, is part of "[EPA's] functions" under the CAA  -  in light of EPA's inherent authority as recognized under the case law to do so - and as a result, CAA section 301(a) confers authority upon EPA to undertake this rulemaking.
      EPA finds further support for its authority to narrow its approval in APA section 553(e), which requires EPA to give interested persons "the right to petition for the issuance, amendment, or repeal of a rule;" and CAA section 307(b)(1), which expressly contemplates that persons may file a petition for reconsideration under certain circumstances (at the same time that a rule is under judicial review).  These authorizations for other persons to petition EPA to amend or repeal a rule suggest that EPA has inherent authority, on its own, to issue such amendment or repeal.  This is because EPA may grant a petition from another person for an amendment to or repeal of a rule only if justified under the CAA, and if such an amendment or repeal is justified under the CAA, then EPA should be considered as having inherent authority to initiate the process on its own, even without a petition from another person.
      EPA recently used its authority to reconsider prior actions and limit its prior approval of a SIP in connection with California conformity SIPs.  See, e.g., 68 FR 15,720, 15723 (discussing prior action taken to limit approvals); 67 FR 69,139 (taking final action to amend prior approvals to limit their duration); 67 FR 46,618 (proposing to amend prior approvals to limit their duration, based on CAA sections 110(k) and 301(a)).  EPA had previously approved SIPs with emissions budgets based on a mobile source model that was current at the time of EPA's approval.  Later, EPA updated the mobile source model.  But, even though the model had been updated, emissions budgets would continue to be based on the older, previously approved model in the SIPs, rather than the updated model.  To rectify this problem, EPA conducted a rulemaking that revised the previous SIP approvals so that the approvals of the emissions budgets would expire early, when the new ones were submitted by states and found adequate, rather than when a SIP revision was approved.  This helped California more quickly adjust its regulations to incorporate the newer model.  In this rule, EPA is using its authority to reconsider and limit its prior approval of SIPs generally in the same manner as it did in connection with California conformity SIPs.
      EPA is relying, in the alternative, on this inherent authority to convert its previous approval of Texas's PSD program to a partial approval and partial disapproval for the same reasons discussed previously in connection with the "error" correction provision of CAA section 110(k)(6).  That is, EPA approved Texas's PSD program even though that program had significant flaws because Texas did not address the applicability of its PSD program to all pollutants newly subject to regulation, including non-NAAQS, and that Texas had adequate legal authority to do so.
      EPA's inherent authority to reconsider its previous action also supports revising its previous action in the same manner, and for the same reasons, as under CAA section 110(k)(6), as described earlier.  That is, in light of the flaws in the Texas PSD program, EPA is revising EPA's previous full approval to be a partial approval (to the extent of the pollutants regulated under the CAA that are subject to Texas's PSD program) and a partial disapproval (to the extent Texas's program does not address pollutants newly subject to regulation, including non-NAAQS pollutants).
   1. Comments received on Reconsideration under Section 301(a)
 	Several commenters questioned EPA's ability to use section 301(a) given that EPA already has the authority to take this action through the SIP revision process.  There is no gap for the Agency to fill with its general rulemaking authority, so, according to these commenters, EPA cannot use this section of the CAA to authorize this SIP revision without going through the notice and comment process required for a SIP revision.  One commenter goes on to question whether the enactment of section 110(k)(6) would have been necessary if EPA had authority under section 301(a).
   2. Response to comments
      EPA's inherent authority to reconsider its actions, in
conjunction with CAA section 301(a) is not limited by the availability of the SIP revision process.  That process entails the state submitting a revised SIP submission and EPA acting on it, which is fundamentally different than EPA reconsidering its action on the initial SIP submission without the state needing to submit a SIP revision.  In addition, the reconsideration authority is broader than the section 110(k)(6) authority because the former is not necessarily limited to the correction of errors.  And if, as commenters argue, the section 110(k)(6) authority is limited to only technical or typographical errors, then the reconsideration authority is substantially broader.  For these reasons, the reconsideration authority should not be considered to have been pre-empted or otherwise eliminated by the availability of either the SIP revision process or the error correction process.
      As for reasons why Congress would have added section 110(k)(6) if the reconsideration authority already existed, several reasons present themselves.  Congress may have intended to codify into the CAA the reconsideration authority, which otherwise would have remained in the case law.  In doing so, Congress established the criteria and process for error corrections.  In addition, three years prior to the enactment of the 1990 CAA Amendments, the U.S. Court of Appeals for the Third Circuit (3[rd] Circuit) handed down a decision in Concerned Citizens of Bridesburg v. U.S. EPA, 836 F.2d 777 (1987), which imposed severe limits on EPA's authority to reconsider its actions.  As discussed elsewhere in this preamble, although the legislative history is not explicit, section 110(k)(6) suggests by its terms that Congress intended the provision to in effect overturn that decision.
 E.  Relationship of This Action to GHG PSD SIP Call
      As noted previously, EPA has recently taken another action concerning Texas's PSD program as that program relates to GHGs:  the GHG PSD SIP call, which we published by notice dated December 13, 2010, 75 FR 77,698.  This section describes the relationship of this error-correction/partial-disapproval/FIP action to the SIP call.  For convenience, the background for the SIP call, although described in detail earlier in this preamble, is reiterated here.
      EPA promulgated the SIP call under CAA section 110(k)(5), which provides:
      Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to ... comply with any requirement of [the CAA], the Administrator shall require the State to revise the plan as necessary to correct such inadequacies.  The Administrator ... may establish reasonable deadlines (not to exceed 18 months) after [notifying the state of the inadequacies] for the submission of such plan revisions.

In the SIP call, EPA made a finding that the PSD SIPs of each of 13 states, including Texas, do not apply to GHG-emitting sources and therefore are "substantially inadequate to ... comply with [the PSD applicability] requirement[s]" of the CAA.
      Accordingly, EPA required each state, including Texas, to submit a corrective SIP revision.  EPA established a deadline for the SIP submittal for each state as 12 months from the date of the SIP call, or December 1, 2011, unless the state indicated in its 30-day letter that it did not object to an earlier deadline.  Each state for which EPA would finalize the SIP call submitted a 30-day letter, and each, except for Texas, indicated a date sooner than December 1, 2011.  Texas did not indicate any particular date and, as a result, EPA established December 1, 2011 as Texas's deadline.  In addition, EPA stated that if Texas or any of the other states failed to submit its corrective SIP revision by its deadline, EPA intended to promulgate a FIP immediately thereafter.
      The timing of the SIP call  -  both the time that EPA promulgated the SIP call and the deadlines it established for SIP submittals - was driven by the fact that the affected states did not have authority to issue PSD permits to GHG-emitting sources and as a result, those sources could face delays in construction and modification when they became subject to PSD as early as January 2, 2011.  EPA designed the SIP call to maximize the opportunity of each affected state to assure that its sources would have a permitting authority available as of that date or a later date, if the state concluded that a later date would not leave its sources facing delays.  EPA did so by allowing each state flexibility for its SIP submittal deadline.
      Each of the affected states except Texas responded with a plan that would assure that its sources would not confront permitting delays.  Most states  -  7 of the 13 states -  indicated they would not object to EPA's establishing a SIP submittal date of December 22, 2010, recognizing that as a practical matter, that meant that EPA would promulgate a FIP on December 23, 2010.  An eighth state (Kentucky) took the same approach for one of its counties (Jefferson County), except selected the slightly later date of January 1, 2011.  Five states (including Kentucky for the rest of its state) indicated a later date, and again, one indicated a date as late as July 1, 2011.  This means that purely as a legal matter, there would be no permitting authority in place in those five states to issue GHG permits on January 2, 2011, when GHG-emitting sources became subject to PSD.  Even so, the later dates were acceptable to each of the five states because (i) they intended to submit a SIP revision by their date, and (ii) they did not expect the lack of a permitting authority during the period before their deadline to place their sources at risk for delays in construction or expansion.
      Texas responded differently than the other states.  In its 30-day letter, Texas did not indicate a particular date for its SIP submittal, and as a result, EPA, as we had proposed, established Texas's deadline at December 1, 2011.  But shortly before submitting its 30-day letter, Texas stated, in its 60-day letter, that "Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emission."  Texas has never qualified this statement, and as a result, EPA reads this statement to indicate that Texas does not intend to submit a SIP revision as required under the SIP call.
      This means that a permitting authority for GHG-emitting sources would not be in place until EPA promulgated a FIP, no earlier than December 2, 2011.  Importantly, Texas has indicated that this one-year delay in the availability of a permitting authority would, in fact, mean that under EPA's interpretation of the CAA, Texas's sources would face delays in constructing and modifying.  Moreover, Texas indicated that during 2011, some 167 construction or modification projects would be affected, which are significantly more sources than any other state.
	Moreover, Texas's indication that it does not intend to submit a SIP revision, and that it does not consider its PSD program as being required to apply to non-NAAQS pollutants, including GHGs, has cast a spotlight on underlying flaws in Texas's fully approved PSD SIP, and that, in turn, has brought into play the error-correction provision in CAA section 110(k)(6).  All this is discussed in detail earlier in this preamble, but to reiterate for convenience:  CAA section 110(k)(6) provides, "Whenever the Administrator determines that the Administrator's action approving ... any [SIP] ... was in error, the Administrator may ... revise such action as appropriate...."  Here, the Texas SIP was flawed at the time EPA approved it because it did not address, or assure adequate legal authority for, application of the PSD program to pollutants newly subject to regulation, including non-NAAQS pollutants.  As a result, EPA has the authority to determine that its full approval of the SIP was "in error" and to convert that action to a partial approval and partial disapproval; and as a result of that, EPA is authorized to promulgate a FIP immediately.
      This is an important reason why EPA is proceeding with this error-correction/partial approval and partial disapproval rulemaking at this time.  This approach allowed EPA to implement a FIP immediately as an interim rule, instead of waiting until December, 2011, and as a result, EPA has been able to act as the permitting authority in Texas and in that capacity, allow Texas sources to avoid delays in construction or modification.  This same approach allows EPA to continue to keep the FIP in pace and continues to act as the permitting authority so that there are no gaps in coverage for sources to obtain permits.
	With the interim final rule and the present rulemaking, EPA has both (i) promulgated a SIP call and established a SIP deadline of December 1, 2011 for Texas, under CAA section 110(k)(5); and (ii) corrected its error in previous fully approving Texas's PSD program by converting that action to a partial approval and partial disapproval, under CAA section 110(k)(6), and then promulgating a FIP immediately, under CAA section 110(c)(1)(B).  For the reasons just discussed, each of these actions is fully justified under the applicable CAA provisions.
	Moreover, there is no preclusion against taking both of these actions with respect to Texas at this time, for the following reasons:  First, the two actions are based on CAA provisions  -  CAA section 110(k)(5) (SIP call), and section 110(k)(6) (error correction) - that overlap, so that it is to be expected that circumstances may arise in which both apply.  If EPA approves a flawed SIP, then circumstances could well arise under which EPA has a basis for concluding both that (i) the SIP is "substantially inadequate" to meet a CAA requirement, under CAA section 110(k)(5); and (ii) EPA's action in approving the SIP was "in error," under CAA section 110(k)(6).  The same flaw in the SIP would be the basis for each of those actions.
      This is the case with EPA's two actions concerning Texas.  As EPA stated in the SIP call, the basis for the finding of "substantial inadequacy" was the failure of Texas's approved SIP PSD program to apply to GHGs, which was rooted in the program's failure to apply pollutants newly subject to regulation.  As EPA stated earlier in this preamble, the basis for the determination that EPA's previous full approval of Texas's SIP was "in error" was the gap in the SIP due to the SIP's failure to address, or assure that it has adequate legal authority for, the application to pollutants newly subject to regulation.
      Second, each provision, by its terms, is discretionary to EPA, and neither provision precludes the application of the other.  CAA section 110(k)(5) applies "[w]henever the Administrator finds" that the SIP is substantially inadequate.  CAA section 110(k)(6) applies "[w]henever the Administrator determines" that her previous action was in error.  Neither provision references the other.  Neither provision includes any requirement or limitation that constrains the application of the other at any time.
	Third, each provision serves a different purpose and when applied to this case  -  including in conjunction with the FIP provision in CAA section 110(c)(1) - leads to a different outcome, but each outcome is neither dependent on, or compromised by, the other outcome.  CAA section 110(k)(5), as  applied in the current case, is focused on a present problem with the SIP, that is, a "substantial[] inadequacy" that  currently exists.  This provision mandates that EPA require a corrective SIP revision to address that inadequacy, but further provides that EPA must allow a reasonable deadline for the state to submit the SIP revision.  In the GHG PSD SIP call, EPA allowed states to, in effect, choose within a range of deadlines.  But if the state fails to submit the required SIP revision by its deadline, then EPA is required to promulgate a FIP under CAA section 110(c)(1)(A).  CAA section 110(k)(6), as it applies in the current case, is focused on a past problem with SIP, that is, a flaw that existed at the time EPA approved the SIP, so that EPA's approval was "in error."  This provision authorizes EPA to convert the approval to a disapproval, but does not mandate that the State submit a new SIP revision.  This is because the state has already submitted a SIP revision, the one that is flawed, and EPA has acted on it.  Instead, EPA is required to promulgate a FIP under CAA section 110(c)(1)(B), and EPA may do so immediately.  The FIP will remain in place until the state submits, and EPA approves, a SIP revision.
      Viewing the two provisions as applied here together: (i) CAA section 110(k)(5) allows EPA to exercise its discretion to make a finding that Texas's SIP is "substantially inadequate," and then to establish a SIP submittal schedule for Texas, one that is consistent with whatever choice as to deadline Texas had available to it; and (ii) CAA section 110(k)(6) allows EPA to exercise its discretion to convert its previous approval of Texas's SIP, which EPA made "in error," to a disapproval, and then to promulgate a FIP immediately.  The requirement that Texas submit a corrective SIP revision and do so by a date certain - a date that Texas exercised some control over - serves the useful function of establishing a mechanism and a timeframe for Texas to address the substantial inadequacy in its PSD SIP.  The immediate promulgation of a FIP serves the useful purpose of assuring the availability of a permitting authority as of January 2, 2011, so that Texas sources will not face delays in their plans to construct or modify.  Importantly, the immediate promulgation of a FIP through this rulemaking does not compromise in any manner the SIP submittal deadline established for Texas through the SIP call.  After EPA's promulgation of the FIP, Texas remains obligated to submit the corrective SIP revision by December 1, 2011.  As soon as Texas does submit that SIP revision and EPA approves it, EPA will rescind the part of the FIP that concerns GHGs.  It is always the case that when EPA has promulgated a FIP of any type in a particular state, the state remains obligated to adopt a SIP revision.  Nothing about a FIP impedes the state from doing so; and when the state does so and EPA approves the SIP revision, then EPA rescinds the FIP.
      It is true that one of the purposes of the SIP call, as applied here, was to allow states to in effect select an early FIP  -  by selecting an early SIP submittal date and then not submitting a SIP by that date  -  so as to assure the availability of a permitting authority for their sources by that early date.  And it is further true that Texas, in its 30-day letter, chose not to select such an early date and, on the contrary, stated its opposition to a FIP; yet, in this present rulemaking, EPA is promulgating an immediate FIP for Texas.  But this does not mean that the present rulemaking has compromised the SIP call or any choices made available to Texas in the SIP call.  The focus of the SIP call, as it related to Texas, was the finding of a substantial inadequacy in Texas's PSD program, the imposition of a requirement for Texas to submit a corrective SIP revision, and  -  based on Texas's choice - the establishment of a deadline of December 1, 2011 for Texas to do so.  The promulgation of an immediate FIP through the present rulemaking does not disturb that.  Texas remains subject to the December 1, 2011, SIP submittal schedule that EPA established for it, based on Texas's decision not to respond directly to EPA's request that Texas itself identify a deadline.  Texas's expressed opposition to a FIP does not preclude EPA from imposing one as justified through the present rulemaking.
      It is also true that, as EPA stated in the SIP call, "federalism principles ... underlie the SIP call process and the SIP system as a whole," and that means that "in the first instance, it is to the state to whom falls the responsibility of developing pollution controls through an implementation plan."  75 FR 77,710/2.  And it is further true that the immediate promulgation of a FIP through the present error-correction action means that a FIP will be in place in Texas before the December 1, 2011 deadline established under the SIP call for Texas to adopt its SIP.  However, imposition of the FIP is fully justified under this error-correction action, as discussed previously, and is essential to assure that Texas sources will not face delays in construction or modification, a risk that Texas acknowledges will occur under EPA's interpretation of the applicable CAA requirements.  In any event, Texas's statement that "Texas has neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emission," as we read it, is tantamount to a direct statement that it does not intend to submit a GHG PSD SIP revision, and is a direct statement that it does not intend to require its sources to obtain permits for their GHG emissions.  Accordingly, it is difficult to see how it could meaningfully be claimed that an early FIP, promulgated through this rulemaking, could displace any prerogatives Texas may have under the SIP call to develop its own SIP revision before the imposition of a FIP or to exercise control over the permitting of GHG emissions of its sources.  Similarly, Texas has stated that it does not believe that EPA's FIP will be effective because, according to Texas, EPA will be unable to issue permits for a lengthy period due to uncertainty over how to apply PSD requirements to GHG-emitting sources.  Accordingly, it is difficult to see how it could meaningfully be claimed that a FIP, which Texas considers ineffective, could adversely affect Texas's interests.
      It is also true that under the principles of federalism that underlie the SIP system, states exercise some discretion over controls for their industry, so that a state may impose more stringent controls than minimum CAA requirements.  CAA section 116.  But this discretion does not mean that Texas is authorized to create the circumstances under which its sources face delays in constructing or modifying and EPA is precluded from promulgating a FIP  -  when justified under this rulemaking  -  for the purpose of protecting those sources against such delays.  Absent this action, Texas sources would face delays in construction and modification resulting from Texas's decision during the course of the SIP call to neither adopt a SIP promptly nor facilitate an early FIP.  Those delays do not result from Texas's decision to impose more stringent controls than the CAA requires.  On the contrary, Texas's action is inconsistent with one of the purposes of the PSD provisions, which is "to insure that economic growth will occur in a manner consistent with the preservation of clean air resources."  CAA section 160(3).  EPA is justified in interpreting and applying CAA section 110(k)(6) to correct errors related to Texas's SIP PSD program in order to effectuate this purpose of PSD.  The D.C. Circuit has held that the terms of the PSD provisions should be interpreted with the PSD purposes in mind, New York v. EPA, 413 F.3d 3, 23(D.C. Cir.), rehearing en banc den., 431 F.3d 801 (2005), and the same should be true of CAA section 110(k)(5) as applied to PSD requirements.
F.  Relationship of This Rulemaking to Other States
      EPA is not, at this time, undertaking a similar error-correction rulemaking for any of the other states that are subject to the SIP call.  EPA has discretion as to whether and when to undertake such a rulemaking, and each of the other states has chosen a course of action that at present appears to assure that its large GHG-emitting sources will have a permitting authority available when the sources need one, and therefore will not face delays in constructing or modifying.  As a result, EPA has not inquired into whether any of these other states have flaws in their SIP PSD programs as Texas does.
   1. Comments on the Relationship of this Rulemaking to Other States
      Industry commenters, in addition to the State of Texas, raised concerns about this rule treating Texas differently than other states.  Other states, such as Arizona, Arkansas, Connecticut, Florida, Idaho, and Kansas, do not have SIPs that automatically update to incorporate new requirements, and so regulate new pollutants in a "stepwise" fashion, according to these commenters. Moreover, these commenters argue that EPA's approval of Texas's SIP cannot be considered to have been in error because, they say, EPA approved other SIPs that, like Texas's, did not automatically apply PSD to each pollutant newly subject to regulation.
      Several industry commenters also stated that they believe that EPA's rationale for this rule, read in conjunction with EPA's PSD Narrowing Rule 75 FR 8253682,536 (December 30, 2010) makes it impossible for a state to ever have an approvable SIP.  This is because, according to these commenters, states can only have an approvable SIP if they automatically incorporate federal requirements when EPA adopts them.  However, the PSD Narrowing Rule was required because those states that do "impose PSD applicability on new pollutants in an unconstrained manner" in their SIPs do not ensure that states have adequate funding and personnel to implement the new SIP requirements, according to commenters.
   2. Response to comments
      EPA disagrees with the comments that we are singling out Texas for unfair treatment for its failure to automatically update its SIP to incorporate new requirements.  Texas is, in fact, unlike each of these other states.  Texas, uniquely among all the states, has stated that it will not implement PSD requirements for GHGs either by revising or committing to revise its SIP.  It is this refusal that has shined a spotlight on EPA's error in previously approving Texas's SIP, for the reasons discussed earlier in this preamble.  Moreover, each of the other states identified by commenters has taken measures to ensure that permitting for GHG-sources in its state will be available.  Arizona, Arkansas, Florida, and Idaho each have a FIP in place to allow EPA to issue permits to GHG-emitting sources.  Connecticut has submitted a SIP revision to enable the state to assume responsibility for PSD permitting of these sources. Kansas already has an approved SIP that applies PSD to GHGs. Accordingly, it has never been necessary for EPA to inquire, and EPA has not inquired, into whether these states have flaws in their PSD SIPs.  In addition, the error correction provision is discretionary: it provides that EPA "may" undertake an error correction when it finds that its previous action was in error.  Accordingly, even if EPA did inquire into the SIP PSD program approvals in these other states, EPA would not be required to issue an error correction for them.  In light of the fact that these states are addressing their GHG-emitting sources as described previously, EPA sees no need at present to consider an error-correction action with respect to those states.  Finally, EPA disagrees with the commenters' argument that EPA's approval of these several other PSD SIPs  -  despite their lack of an automatic updating mechanism  -  means that EPA's approval of Texas's PSD SIP was not in error.  As discussed elsewhere in this rulemaking preamble, the Texas SIP was flawed because it did not address the applicability of PSD to pollutants newly subject to regulation, not because it did not automatically apply PSD to such pollutants.  Commenters have not shown that the several other SIPs they discuss did not address the applicability of PSD to pollutants newly subject to PSD in some way other than automatic updating.  And if any other of the SIPs, or even all of them, did not do so, then it is possible that those SIPs were flawed in the same manner as Texas's, and that in approving them, EPA repeated the same error that it made in approving Texas's SIP.  But to reiterate, section 110(k)(6) is discretionary with EPA and EPA has no reason to review those SIPs.
      EPA also disagrees with the commenters that contend that no SIP could possibly be approvable given the rationales presented for this rule and the SIP Narrowing Rule.  In this action, EPA identifies as the flaw in the SIPs the failure to address the applicability of PSD to newly regulated pollutants (along with the failure to provide adequate assurances of legal authority to apply PSD to such pollutants).  As noted earlier in this preamble, there are several ways that States could address this flaw, and although providing for automatic updating is one way  -  and the one that most states have adopted  -  it is not the only way.  A State could, for example, commit to adopt a SIP revision to apply PSD to a newly regulated pollutant.  In the course of addressing the applicability of PSD to a newly regulated pollutant, the state could address any associated resource issues.  Moreover, as EPA explained in the SIP Narrowing rule, the flaw that needed correcting by that rule was the "combination of that unconstrained applicability and the failure of the SIP to plan for adequate resources for that applicability, and to do so on the appropriate time-table." (emphasis added) 75 FR 82,542 (December 30, 2010).  There are, in fact, some states that were able to revise their SIPs before January 2, 2011.  Six other states and four districts within states were able to interpret their SIPs to regulate GHG emissions only above the Tailoring Rule thresholds, and needed no further action by EPA.  There is, then, no "conundrum" for a state that does not adopt EPA regulations by reference.
G.   Federal Implementation Plan
1.  Authority to Promulgate a FIP
In this rulemaking, EPA is promulgating a FIP to apply EPA's PSD regulatory program to GHG-emitting sources in Texas and to commit to take action as appropriate with respect to pollutants that become newly subject to regulation.
The CAA authority for EPA to promulgate a FIP is found in CAA section 110(c)(1), which provides  -
      The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator ... (B) disapproves a State implementation plan submission in whole or in part,  unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such [FIP].

	As indicated earlier in this notice, EPA is partially disapproving Texas's PSD program by correcting EPA's previous full approval to be a partial approval and partial disapproval.  Accordingly, under CAA section 110(c)(1)(B), EPA is required to promulgate a PSD FIP for Texas.
	The FIP must be designed to address the flaws in Texas's PSD program.  As discussed earlier in this preamble, the Texas PSD program contains significant gaps:  It does not address, or provide assurances of adequate legal authority for, application to pollutants newly subject to regulation, including non-NAAQS pollutants.  As a practical matter, at present, the only pollutant the program does not address is GHGs.  Accordingly, the FIP applies the EPA regulatory PSD program to GHGs.  In addition, the FIP commits to address pollutants that become newly subject to regulation, as appropriate.
2.  Timing of FIP
EPA is promulgating the FIP in this rulemaking, so that it takes effect immediately upon the partial disapproval.  This timing for FIP promulgation is authorized under CAA section 110(c)(1), which authorizes us to promulgate a FIP "at any time within 2 years after" EPA disapproves a SIP submission in whole or in part.  The quoted phrase, by its terms, establishes a two-year period within which EPA must promulgate the FIP, and provides no further constraints on timing.  Accordingly, this provision gives EPA discretion to promulgate the FIP at any point in time within that two-year period, and in this rulemaking, EPA is promulgating the FIP immediately.
	The reason why we are exercising our discretion to promulgate the FIP immediately is to minimize any period of time during which larger-emitting sources in Texas may be under an obligation to obtain PSD permits for their GHGs when they construct or modify, but no permitting authority is authorized to issue those permits.  We believe that acting immediately is in the best interests of the regulated community.  Note that for similar reasons, in EPA's recently promulgated SIP call, EPA stated that if a state failed to submit its required SIP revision by its deadline, EPA would immediately make a finding of failure to submit and immediately thereafter promulgate a FIP.  75 FR 53,889/2.
	The lack of constraints in CAA section 110(c)(1)(B) stands in contrast to other CAA provisions that do impose requirements for the timing of proposals.  See CAA sections 109(a)(1)(A), 111(b)(1)(B).  In light of the lack of constraints, EPA was free to promulgate the FIP concurrently with the disapproval action.
3.  Substance of GHG PSD FIP
a.  Components of FIP
	The FIP consists of two components.  The first mirrors the GHG PSD FIP that EPA promulgated for seven states for which EPA issued the PSD GHG SIP call and, subsequently, issued a finding of failure to submit a required SIP submittal.  Thus, this component of the FIP consists of the EPA regulations found in 40 CFR 52.21, including the PSD applicability provisions, with a limitation to assure that, strictly for purposes of this rulemaking, the FIP applies only to GHGs.  Under the PSD applicability provisions in 40 CFR 52.21(b)(50), the PSD program applies to sources that emit the requisite amounts of any "regulated NSR pollutant[s]," including any air pollutant "subject to regulation."  However, Texas's partially approved SIP already applies PSD to other air pollutants.  To appropriately limit the scope of the FIP, EPA amends 40 CFR 52.21(b)(50), as incorporated into the Texas FIP, to limit the applicability provision to GHGs.
We adopt this FIP because, as we stated in the proposed GHG PSD FIP  -
      it would, to the greatest extent possible, mirror EPA regulations (as well as those of most of the states).  In addition, this FIP would readily incorporate the phase-in approach for PSD applicability to GHG sources that EPA has developed in the Tailoring Rule and expects to develop further through additional rulemaking.  As explained in the Tailoring Rule, incorporating this phase-in approach -- including Steps 1 and 2 of the phase-in as promulgated in the Tailoring Rule -- can be most readily accomplished through interpretation of the terms in the definition "regulated NSR pollutant," including the term "subject to regulation."
      In accordance with the Tailoring Rule, ... the FIP would apply in Step 1 of the phase-in approach only to "anyway sources" (that is, sources undertaking construction or modification projects that are required to apply for PSD permits anyway due to their non-GHG emissions and that emit GHGs in the amount of at least 75,000 tpy on a CO2e basis) and would apply in Step 2 of the phase-in approach to both "anyway sources" and sources that meet the 100,000/75,000-tpy threshold (that is, (i) sources that newly construct and would not be subject to PSD on account of their non-GHG emissions, but that emit GHGs in the amount of at least 100,000 tpy CO2e, and (ii) existing sources that emit GHGs in the amount of at least 100,000 tpy CO2e, that undertake modifications that would not trigger PSD on the basis of their non-GHG emissions, but that increase GHGs by at least 75,000 tpy CO2e).
      Under the FIP, with respect to permits for "anyway sources," EPA will be responsible for acting on permit applications for only the GHG portion of the permit, and the state will retain responsibility for the rest of the permit.  Likewise, with respect to permits for sources that meet the 100,000/75,000-tpy threshold, our preferred approach -- for reasons of consistency -- is that EPA will be responsible for acting on permit applications for only the GHG portion of the permit, that the state permitting authorities will be responsible for the non-GHG portion of the permit, and EPA will coordinate with the state permitting authority as needed in order to fully cover any non-GHG emissions that, for example, are subject to BACT because they exceed the significance levels.

      75 FR 53,889/3 to 53,890/1.
This formulation of the FIP is authorized because it is part of the "appropriate" action EPA is authorized to take as part of EPA's correction of its previous, erroneous full approval, under CAA section 110(k)(6).
	The second component of the FIP consists of a commitment that EPA will take such action as is appropriate to ensure that pollutants that become newly subject to regulation are subject to the FIP.  If a pollutant becomes newly subject to regulation in the future, and if Texas does not take steps to subject it to its PSD program, then EPA will take the appropriate action.
b. Dual permitting authorities
In the GHG PSD FIP proposal, commenters raised concerns about how having EPA issue the GHG portions of a permit while allowing states under a FIP to continue to be responsible for issuing the non-GHG portions of a PSD permit will work in practice.  Commenters specifically identified the potential for a source to be faced with conflicting requirements and the need to mediate among permit engineers making BACT decisions.
      We well recognize that dividing permitting responsibilities between two authorities  -  EPA for GHGs and the state, Texas, in this case, for all other pollutants  -  will require coordination between the two authorities to avoid duplication, conflicting determinations, and delays.  We note that this situation is not without precedent.  In many instances, EPA has been the PSD permitting authority but the state has accepted a delegation for parts of the PSD program, so that a source has had to go to both the state and EPA for its permit.  In addition, all nonattainment areas in the nation are in attainment or are unclassifiable for at least one pollutant, so that every nonattainment area is also a PSD area.  In some of these areas, the state is the permitting authority for nonattainment NSR and EPA is the permitting authority for PSD.  As a result, there are instances in which a new or modifying source in such an area has needed a nonattainment NSR permit from the state and a PSD permit from EPA.
      EPA is working expeditiously to develop recommended approaches for EPA regions and affected states to use in addressing the shared responsibility of issuing PSD permits for GHG-emitting sources.  EPA delegated the authority to issue PSD permits to GHG-emitting sources to one state, and is working toward similar delegations in other states.  In addition, EPA has provided training and guidance for permitting authorities in determining GHG BACT for these sources.
      In addition, we note that the concern over dual permitting authorities would become moot if Texas were either to submit and EPA approve a SIP revision that applies PSD to GHGs or request a delegation of permitting responsibility.  If it did request and receive a delegation, it would be responsible for issuing both the GHG part and the non-GHG part of the permit, and that would moot concerns about split-permitting.
4.  Period for GHG PSD FIP to Remain in Place
	In the FIP proposal, we stated our intention to leave any promulgated FIP in place for as short a period as possible, and to process any corrective SIP revision submitted by the state to fulfill the requirements of the SIP call as expeditiously as possible.  Specifically, we stated:
      	After we have promulgated a FIP, it must remain in place until the state submits a SIP revision and we approve that SIP revision.  CAA section 110(c)(1).  Under the present circumstances, we will act on a SIP revision to apply the PSD program to GHG sources as quickly as possible.  Upon request of the state, we will parallel-process the SIP submittal.  That is, if the state submits to us the draft SIP submittal for which the state intends to hold a hearing, we will propose the draft SIP submittal for approval and open a comment period during the same time as the state hearing.  If the SIP submittal that the state ultimately submits to us is substantially similar to the draft SIP submittal, we will proceed to take final action without a further proposal or comment period.  If we approve such a SIP revision, we will at the same time rescind the FIP.

75 FR 53,889/2-3.
      We continue to have these same intentions.  Thus, we reaffirm our intention to leave the GHG PSD FIP in place only as long as is necessary for the state to submit and for EPA to approve a SIP revision that includes PSD permitting for GHG-emitting sources.  As discussed in more detail later in this preamble, EPA continues to believe that the states, including Texas, should remain the primary permitting authority.
      Specifically, EPA will rescind the FIP, in full or in part, if (i) Texas submits, and EPA approves, a SIP revision to apply Texas's PSD program to GHG-emitting sources, (ii) Texas provides assurances that in the future, it will apply its PSD program to all pollutants newly subject to regulation, including non-NAAQS pollutants, and (iii) Texas provides "necessary assurances" under CAA section 110(a)(2)(E)(ii) that it "will have adequate ... authority under State law" to apply its PSD program to such pollutants.
      In addition, if Texas does not submit a SIP revision by December 1, 2011, in response to the SIP Call, EPA intends to promulgate, on or about December 2, 2011, the FIP associated with the SIP call.  The GHG provisions of the FIP promulgated with this error correction rulemaking will terminate at that time, and, in effect, be replaced by the identical provisions in the FIP associated with the SIP call.  The remaining components of the FIP promulgated with this error correction rulemaking, which concern other non-criteria pollutants other than GHGs, will remain in place.
5.  Primacy of Texas's SIP process
This action to partially approve and partially disapprove Texas's SIP PSD program and to promulgate a FIP is secondary to our overarching goal, which is to assure that it will be Texas that will be the permitting authority.  EPA continues to recognize that Texas is best suited to the task of permitting because the state and its sources have experience working together in the state PSD program to process permit applications.  EPA seeks to remain solely in its primary role of providing guidance and acting as a resource for Texas as it makes the various required permitting decisions for GHG emissions.
Accordingly, we are prepared to work closely with Texas to help it promptly develop and submit to us a SIP revision that extends its PSD program to GHG-emitting sources and that assures that the program will apply to each pollutant newly subject to regulation in the future.  If Texas submits such a SIP revision, we intend to promptly act on it, and if we approve it, then we intend to rescind the FIP immediately.  Again, EPA's goal is to have in place in Texas the necessary permitting authority by the time businesses seeking construction permits need to have their applications processed and the permits issued  -- - and to achieve that outcome by means of engaging with Texas directly through a concerted process of consultation and support.
EPA is taking up the additional task of partially disapproving Texas's PSD program and promulgating the FIP at this time only because the Agency believes it is compelled to do so by the need to assure businesses, to the maximum extent possible and as promptly as possible, that a permitting authority is available to process PSD permit applications for GHG-emitting sources once they become subject to PSD requirements.  At the same time, we invite Texas to accept a delegation of authority to implement the FIP, so that it will still be the state that processes the permit applications, albeit operating under federal law.
V.	Statutory and Executive Order Reviews
A.	Executive Order 12866:  Regulatory Planning and Review and Executive 13563:  Improving Regulations and Regulatory Review
Under Executive Orders (EO) 12866 (58 FR 51,735, October 4, 1993) and 13563 (76 FR 3,821, January 21, 2011), this action is a "significant regulatory action" because it raises novel legal or policy issues.  Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EOs 12866 and 13563 and any changes made in response to OMB recommendations have been documented in the docket for this action.
B.	Paperwork Reduction Act
This action does not impose any new information collection burden.  The OMB has previously approved the information collection requirements contained in the existing regulations for PSD (see, e.g., 40 CFR 52.21) and title V (see 40 CFR parts 70 and 71) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0003 and OMB control number 2060-0336 respectively.  The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C.	Regulatory Flexibility Act
	The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comments rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.  Small entities include small businesses, small organizations, and small governmental jurisdictions.
	For purposes of assessing the impacts of this notice on small entities, small entity is defined as: (1) A small business that is a small industrial entity as defined in the U.S. Small Business Administration (SBA) size standards (see 13 CFR 121.201); (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.
	Although this rule would lead to federal permitting requirements for certain sources, those sources are large emitters of GHGs and tend to be large sources.  After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.  This final rule will not impose any requirements on small entities.
D.	Unfunded Mandates Reform Act
This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1531-1538) for state, local or tribal governments or the private section.  The action imposes no enforceable duty on any state, local or tribal governments or the private sector.  With this action, EPA is only revising its previous approval of the Texas PSD SIP to be a partial approval and partial disapproval and promulgating a FIP to address the deficiencies as authorized by the CAA.  Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
E.	Executive Order 13132  -  Federalism
This action does not have federalism implications.  It will not have substantial direct effects on Texas, on the relationship between the national government and Texas, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.  The CAA specifies conditions under which states may request, and EPA may approve state implementation of CAA requirements.  The CAA also specifies the action EPA is to take, including issuing a FIP, when states have not met their requirements under the CAA.  This rulemaking does not change that distribution of power between the states and EPA.  With this action, EPA is only revising its previous approval of the Texas PSD SIP to be a partial approval and partial disapproval and promulgating a FIP to address the deficiencies identified in the Texas SIP as authorized by the CAA.  Thus, Executive Order 13132 does not apply to this action.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA solicited comment on the proposal for this action.  Comments from state government organizations are addressed within this preamble and supporting materials available in the docket for this rulemaking.
F.	Executive Order 13175 - Consultation and Coordination with Indian Tribal Governments
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67,249, November 9, 2000).  In this action, EPA is not addressing any tribal implementation plans.  This action is limited to Texas's PSD SIP.  Thus, Executive Order 13175 does not apply to this action.
G.	Executive Order 13045 - Protection of Children from Environmental Health Risks and Safety Risks
EPA interprets EO 13045 (62 FR 19,885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation.  This action is not subject to EO 13045 because EPA is only revising its previous approval of the Texas PSD SIP to be a partial approval and partial disapproval and promulgating a FIP to address the deficiencies as authorized by the CAA.
H.	Executive Order 13211 - Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
This action is not a "significant energy action" as defined in Executive Order 13211 (66 FR 28,355(May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.  With this action, EPA is only revising its previous approval of the Texas PSD SIP to be a partial approval and partial disapproval and promulgating a FIP to address the deficiencies as authorized by the CAA.  This action will provide energy facilities in Texas that are large emitters of GHG a mechanism to get necessary PSD permits to construct or modify.
I.	National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 ("NTTAA"), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical.  Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies.  NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards.  Therefore, EPA is not considering the use of any voluntary consensus standards.
J.	Executive Order 12898 - Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7,629, February 16, 1994) establishes federal executive policy on environmental justice.  Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment.  With this action, EPA is only revising its previous approval of the Texas PSD SIP to be a partial approval and partial disapproval and promulgating a FIP to address the deficiencies as authorized by the CAA.
K.	Congressional Review Act
      The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States.  Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest.  This determination must be supported by a brief statement, 5 U.S.C. 808(2).  As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of May 1, 2011.  EPA will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register.  This action is not a "major rule" as defined by 5 U.S.C. 804(2).
VI.  Judicial Review
      Section 307(b)(1) of the CAA specifies which Federal Courts of Appeal have jurisdiction to hear petitions for review of which final actions by EPA.  This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit:  (i) when the agency action consists of "nationally applicable regulations promulgated, or final actions taken, by the Administrator," or (ii) when such action is locally or regionally applicable, if "such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination."
      This rule is based on a determination of nationwide scope or effect.  Texas's response to the SIP call  -  including Texas's statements that it does not intend to submit a SIP revision and its decision not to identify a SIP submittal deadline, which have placed its sources at risk for delays in construction or modification  -  led us to determine that we should examine whether there may be a flaw in Texas's SIP that was present at the time of our approval.  We then conducted a closer inquiry and on the basis of that, we are concluding that in fact a flaw was present.  As a result, we are authorized to undertake an error correction, as we are doing in this rulemaking.  For all other states subject to the SIP call, their response to the SIP call  -  which did not raise the concerns Texas's did and which assured that their sources would not be at risk for delays in construction or modification  -  led us to determine that it was not necessary to examine further whether their SIPs were flawed at the time we approved them.  That determination  -  whether to examine the SIPs further  -  is a determination of nationwide scope or effect because it affected Texas and the 12 other states subject to the SIP call.  Further indication that this is a determination is of nationwide scope or effect is that EPA is making it as part of the complex of rules EPA has promulgated to implement the GHG PSD program for each of the states in the nation.  Those rules include (i) the Tailoring Rule and the Johnson Memo Reconsideration, which revise EPA regulations to incorporate the Tailoring Rule thresholds, and which apply in each state that does not have an approved SIP PSD program, and therefore operates under EPA's regulations; (ii) the SIP Call, which applies in each state that has an EPA-approved SIP PSD program but does not apply that program to GHG-emitting sources; and (iii) the PSD Narrowing rule, which applies in each state that has an EPA-approved SIP PSD program that does apply to GHG-emitting sources.
      Thus, under section 307(b)(1) of the Act, judicial review of this final action is available by filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by [INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].
      Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d) to the extent it promulgates a FIP under CAA sectopm110(c).  In addition, pursuant to CAA section 307(d)(1)(V), which authorizes the Administrator to determines that actions other than those specifically listed in CAA section 307(d)(1) are subject to the provisions of CAA section 307(d), EPA is making that determination for this action to the extent it constitutes an error correction under CAA section 110(k)(6); a rescission of EPA's previous approval and a limited approval and disapproval of Texas's PSD SIP, under CAA section 110(k)(3); or any other action.
IX.	Statutory Authority
The statutory authority for this action is provided by sections 101, 110, 114, 116, 301, and 307(d) of the CAA as amended (42 U.S.C. 7401, 7410, 7414, 7416, 7601, and 7607(d)).

Page 162 of 164  -  Determinations Concerning Need for Error Correction, Partial Approval and Partial Disapproval, and Federal Implementation Plan Regarding Texas's Prevention of Significant Deterioration Program

List of Subjects in 40 CFR Part 52
Air pollution control, Carbon dioxide, Carbon dioxide equivalents, Carbon monoxide, Environmental protection, Greenhouse gases, Hydrofluorocarbons, Intergovernmental relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone, Particulate matter, Perfluorocarbons, Reporting and recordkeeping requirements, Sulfur hexafluoride, Sulfur oxides, Volatile organic compounds.

________________________
Dated:

_________________________
Lisa P. Jackson,
Administrator.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
PART 52 - [Amended]
1. The authority citation for part 52 continues to read as follows:
   Authority:  42 U.S.C. 7401 et seq.

2. Section 52.2305 is added to read as follows:
	Section 52.2305  What are the requirements of the Federal Implementation Plan (FIP) to issue permits under the Prevention of Significant Deterioration requirements to sources that emit greenhouse gases?
(a)	The requirements of sections 160 through 165 of the Clean Air Act are not met to the extent the plan, as approved, for Texas does not apply with respect to emissions of the pollutant GHGs from certain stationary sources.  Therefore, the provisions of §52.21 except paragraph (a)(1) are hereby made a part of the plan for Texas for:
(1) Beginning on [##][THE EFFECTIVE DATE OF THIS RULE], the pollutant GHGs from stationary sources described in §52.21(b)(49)(iv), and
(2) Beginning July 1, 2011, in addition to the pollutant GHGs from sources described under paragraph (a)(1) of this section,
stationary sources described in §52.21(b)(49)(v).
(b) For purposes of this section, the "pollutant GHGs" refers to the pollutant GHGs, as described in §52.21(b)(49)(i).
(c)In addition, the United States Environmental Protection Agency shall take such action as is appropriate to assure the application of PSD requirements to sources in Texas for any other pollutants that become subject to regulation under the federal Clean Air Act for the first time after January 2, 2011.


[Federal Register Volume 85, Number 135 (Tuesday, July 14, 2020)]
[Notices]
[Pages 42446-42447]
[FR Doc No: 2020-15118]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89263; File No. SR-CboeBZX-2020-011]

Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of
Withdrawal of a Proposed Rule Change To Amend Certain Rules Within
Rules 4.5 Through 4.16, Which Contains the Exchange's Compliance Rule
Regarding the National Market System Plan Governing the Consolidated
Audit Trail (``CAT NMS Plan''), To Be Consistent With Certain Proposed
Amendments to and Exemptions From the CAT NMS Plan as Well as To
Facilitate the Retirement of Certain Existing Regulatory Systems

July 8, 2020.
    On January 22, 2020, Cboe BZX Exchange, Inc. (``Exchange'' or
``BZX'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend the Exchange's compliance rule regarding
the National Market System Plan Governing the Consolidated Audit Trail.
The proposed rule change was published for comment in the Federal
Register on February 5, 2020.\3\ On March 20, 2020, the Commission
extended the time period within which to approve the proposed rule
change, disapprove the proposed rule change, or institute proceedings
to determine whether to approve or disapprove the proposed rule change,
to May 5, 2020.\4\ On April 29, 2020, the Commission issued an order
instituting proceedings under Section 19(b)(2)(B) of the Act \5\ to
determine whether to approve or disapprove the proposed

rule change.\6\ The Commission received no comment letters regarding
the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 88101 (January 30,
2020), 85 FR 6589.
    \4\ See Securities Exchange Act Release No. 88440, 85 FR 17141
(March 26, 2020).
    \5\ 15 U.S.C. 78s(b)(2)(B).
    \6\ See Securities Exchange Act Release No. 88771, 85 FR 26741
(May 5, 2020).
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    On June 18, 2020, the Exchange withdrew the proposed rule change
(SR-CboeBZX-2020-011).
    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\7\
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    \7\ 17 CFR 200.30-3(a)(12).

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-15118 Filed 7-13-20; 8:45 am]
BILLING CODE 8011-01-P