The third category includes the remaining states, which have an
approved SIP PSD program that applies to GHG-emitting sources. As for
the implementation process for this category, some of these states have
indicated that they are able to interpret their SIPs to apply PSD only
to GHG emissions at or above the Tailoring Rule thresholds, and they do
not need to revise their SIPs to do so. However, most indicated that
they would need to submit SIP revisions to EPA in order to incorporate
the Tailoring Rule thresholds. This means that in these states, until
they do submit their SIP revisions and EPA approves them, sources
emitting GHGs at or above the 100/250 tpy levels will be subject to PSD
requirements as of January 2, 2011 if they construct or modify. EPA has
encouraged these states to submit SIP revisions adopting the Tailoring
Rule thresholds as soon as possible and some of these states have
already done so. Moreover, almost all of these states are proceeding to
revise their state law to reflect the Tailoring Rule thresholds and
will do so by January 2, 2011 or very soon thereafter. In the meantime,
EPA has finalized the Narrowing Rule so that as of January 2, 2011, at
least for federal purposes, PSD will apply to GHG-emitting sources only
at the Tailoring Rule thresholds or higher.\59\ As a result of these
state actions and EPA's Narrowing Rule, by January 2, 2011 or shortly
thereafter, in all or almost all of these states, only GHG-emitting
sources at or above the Tailoring Rule thresholds will be subject to
PSD requirements.\60\
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    \59\ Specifically, for these states, EPA has stated that it
intends to finalize its proposal in the Tailoring Rule to narrow its
approval of their PSD applicability provisions to only the extent
they apply PSD to GHG-emitting sources at or above the Tailoring
Rule thresholds, which we call the Narrowing Rule. Id. paragraph 90,
page 19. In addition, recognizing that GHG-emitting sources also
have permitting obligations under state law, EPA has strongly
encouraged states to revise their state law as promptly as possible
to eliminate the state PSD obligations of sources below the
Tailoring Rule thresholds. Id. paragraph 92, page 19.
    \60\ Id. paragraphs 62-94, pages 13-20, and Attachment 1, Table
3.
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d. SIP Call States, Including Texas
    As just noted, the second category, which includes Texas, includes
14 states and some districts within states whose SIPs have an approved
PSD program but do not have the authority to apply that program to GHG-
emitting sources. For most of these states, including Texas, the reason
is that their PSD applicability provision applies to any ``pollutant
subject to regulation'' under the CAA (or a similar term), but other
provisions of state law preclude automatic updating. As a result, this
applicability provision covers only pollutants--not including GHGs--
that were subject to regulation at the time the state adopted the
applicability provision.
    After proposing action by notice dated September 2, 2010,\61\ EPA
promulgated the final SIP call for 13 states, including Texas, by
notice signed on December 1, 2010, and published on December 13, 2010,
75 FR 77,698, which we call the GHG PSD SIP Call or, simply, the SIP
call.\62\ In this action, consistent with the requirements of CAA
section 110(k)(5), EPA (i) issued a finding that the SIPs for 13 states
(comprising 15 state and local programs) are ``substantially inadequate
to * * * comply with any requirement of this Act'' because their PSD
programs do not apply to GHG-emitting sources as of January 2, 2011;
(ii) issued a SIP call requiring submission of a corrective SIP
revision; and (iii) established a ``reasonable deadline[] (not to
exceed 18 months after the date of such notice)'' for the submission of
the corrective SIP revision. This deadline ranges, for different
states, from 3 weeks to 12

months after the date of the final SIP call, as discussed below.
---------------------------------------------------------------------------

    \61\ ``Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Proposed Rule,'' 75 FR 53892 (September 2, 2010); ``Action to
Ensure Authority to Issue Permits under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan--Proposed Rule,'' 75 FR 53883
(September 2, 2010).
    \62\ ``Action to Ensure Authority to Issue Permits under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call--Final Rule,'' 75 FR 77,698 (December 13, 2010).
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    EPA justified its finding that the affected SIPs are
``substantially inadequate'' to comply with CAA requirements on grounds
that (i) the CAA requires that PSD requirements apply to any stationary
source that emits specified quantities of any air pollutant subject to
regulation under the CAA, and those PSD requirements must be included
in the approved SIPs; (ii) as of January 2, 2011, GHG-emitting sources
will become subject to PSD; (iii) as a result, the CAA requires PSD
programs to apply to GHG-emitting sources; and (iv) accordingly, the
failure of any SIP PSD applicability provisions to apply to GHG-
emitting sources means that the SIP fails to comply with these CAA
requirements.
    In the SIP call proposal, EPA discussed in some detail the SIP
submittal deadline under CAA section 110(k)(5). Under this provision,
in issuing a SIP call, EPA ``may establish reasonable deadlines (not to
exceed 18 months after the date of such notice) for the submission of
such plan revisions.'' EPA proposed to allow each of the affected
states up to 12 months from the date of signature of the final finding
of substantial inadequacy and SIP call within which to submit the SIP
revision, unless, during the comment period, the state expressly
advised that it would not object to a shorter period--as short as 3
weeks from the date of signature of the final rule--in which case EPA
would establish the shorter period as the deadline. EPA stated that,
assuming that EPA were to finalize the SIP call on or about December 1,
2010, as EPA said it intended to do in the proposal, then the earliest
possible SIP submittal deadline would be December 22, 2010.
    EPA made clear that the purpose of establishing the shorter period
as the deadline for any interested state is to accommodate states that
wish to ensure that a FIP is in effect as a backstop to avoid any gap
in PSD permitting. EPA also made clear that if a state did not advise
EPA that it does not object to a shorter deadline, then the 12-month
deadline would apply. EPA emphasized that for any state that receives a
deadline after January 2, 2011, the affected GHG-emitting sources in
that state may be delayed in their ability to receive a federally
approved permit authorizing construction or modification. This is
because after January 2, 2011, these sources may not have available a
permitting authority to review their permit applications until the date
that EPA either approves the SIP submittal or promulgates a FIP.
    EPA asked that each of the affected states write EPA a letter
during the comment period to identify the deadline for SIP submission
to which the state would not object if EPA established. We call these
the 30-day letters. Each affected state wrote a 30-day letter to EPA,
as requested. Except for Texas, each state identified a SIP submittal
deadline, which differed among the states, and which ranged from three
weeks to 12 months. In the final SIP call, EPA established SIP
submittal deadlines identified by the states, except that EPA
established a deadline of 12 months for Texas, in accordance with EPA's
proposal. Except for Texas, each state explained in its 30-day letter
and in subsequent communications with EPA, that it was planning on
either receiving a FIP or adopting a SIP and that it chose a deadline
that would result in having either the FIP or an approved SIP, as
appropriate, in place by January 2, 2011 or soon enough thereafter so
as to avoid any hardship to its sources. In the final SIP call, EPA
justified approving this three-week-to-12-month time period, although
expeditious, as meeting the CAA section 110(k)(5) requirement to be a
``reasonable'' deadline in light of: (i) The SIP development and
submission process; (ii) the preference of the state; and (iii) the
imperative to minimize the period when sources will be subject to PSD
but will not have available a PSD permitting authority to act on their
permit application and therefore may face delays in constructing or
modifying.
    In the final SIP call, based on the states' 30-day letters and
other communications, EPA established a SIP submittal deadline of
December 22, 2010 for seven states. Each of the states indicated that
it did not expect to submit a SIP revision by that date and instead
expected to receive a FIP. On December 23, 2010, for each of the seven
states, EPA issued a finding of failure to submit its corrective SIP
revision by that deadline, and EPA promulgated a FIP.
    Except for Texas, EPA expects each of the other states subject to
the SIP call to adopt a SIP revision and receive EPA approval of it, or
receive a FIP, within the first half of 2011, and, in most cases,
substantially sooner. Although none of these states will have a
permitting authority in place as of January 2, 2011, none of these
states expects that gap to pose meaningful difficulties for sources
because, depending on the state, the gap is brief, the state does not
expect any sources to seek a permit during the gap, or even if the
state were the permitting authority during the gap, it could not
complete processing the permits during that time.\63\
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    \63\ McCarthy Declaration, p. 12, paragraph 55.
---------------------------------------------------------------------------

    As discussed later, Texas has responded to the SIP call differently
than the other states. As a result, its GHG-emitting sources do face
the prospect of permitting delays. This rulemaking action addresses
that situation.
4. Summary of the Effect of EPA's Implementation Actions in States
Other Than Texas
    EPA recently summarized the status of its implementation efforts,
for all three categories of sources, as follows:

    Overall, EPA has received information about the status of 99
jurisdictions (49 states,\64\ 4 territories, 45 localities, and the
District of Columbia), and included that information in Attachment
1. Of these jurisdictions, 94 will have, for Federal law purposes, a
PSD permitting program for GHG emissions at the Tailoring Rule
thresholds on Jan. 2, 2011. Of these 94 entities, 84 will have made
any necessary amendments to state or local law to ensure that state
or local permits are not required for GHG emissions below Tailoring
Rule thresholds. By the end of the first quarter of 2011, only one
jurisdiction will not have authority to permit GHG sources, and that
jurisdiction will obtain authority by July 1, 2011 and in the
meantime, does not expect large sources seeking permits for their
GHGs. In addition, by the end of the first quarter of 2011, all but
one more state will have made any necessary amendments to state or
local law to ensure that permits are not required for GHG emissions
below Tailoring Rule levels. 1 program with GHG permitting authority
at the lower statutory levels has not yet determined how, and on
which timeline, it will incorporate the Tailoring Rule thresholds
into its state law.\65\
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    \64\ In California's PSD program is administered in its entirety
by local jurisdictions.
    \65\ McCarthy Declaration, p. 20, paragraph 98. There have been
a few changes in the status of individual states since this time,
but the overall picture remains the same. In no small part, the
current state of EPA's implementation effort is attributable to the
fact that EPA has been in close communication with almost every
state and many other jurisdictions, along with multi-state
organizations such as the National Association of Clean Air Agencies
(NACAA). In addition to the letters that states have sent responding
to the Tailoring Rule (the 60-day letters) and proposed SIP Call
(the 30-day letters), EPA officials, primarily through the Regional
offices, have had numerous communications with their state
counterparts.

    Thus, under EPA's implementation program, (i) in every state, (a)
only sources at or above the Tailoring Rule thresholds will be subject
under federal law to obtain a PSD permit when they construct or modify
as of January 2, 2011, and (b) only those same sources will be subject
under state law to obtain a PSD permit when they construct or modify as
of January 2, 2011 or very

soon thereafter; and (ii) in every state, except for Texas, as of
January 2, 2011 or very soon thereafter, GHG sources that construct or
modify will be able to receive permits when they need them, so that the
sources will not face obstacles to constructing and modifying. Again,
Texas has responded to EPA's implementation program in a manner that
has resulted in its sources facing obstacles to constructing and
modifying, as discussed next, which this rulemaking addresses.
5. EPA's Implementation Approach for Texas and Texas's Response
    The following describes the progress to date of implementing PSD
for GHG emissions in Texas, based on extensive communications between
EPA and TCEQ. It should be borne in mind, as noted earlier, that Texas
is in the second of the three categories of states, that is, it has an
approved PSD program that does not apply to GHGs-emitting sources.
a. Texas's 60-Day Letter
    Texas's 60-day letter provides the state's clearest articulation of
its response to EPA's efforts to implement PSD for GHG-emitting sources
at the Tailoring Rule thresholds beginning January 2, 2011. As noted
previously, in the preamble to the final Tailoring Rule, EPA asked each
state to send EPA a letter within 60 days to identify which category
the state was in and what action the state intended to take.
Specifically, with regard to sources in Category 2, EPA stated:

    In our proposed rule, we also noted that a handful of EPA-
approved SIPs fail to include provisions that would apply PSD to GHG
sources at the appropriate time. This is generally because these
SIPs specifically list the pollutants subject to the SIP PSD program
requirements, and do not include GHGs in that list, rather than
include a definition of NSR regulated pollutant that mirrors the
federal rule, or because the state otherwise interprets its
regulations to limit which pollutants the state may regulate. At
proposal, we indicated that we intended to take separate action to
identify these SIPs, and to take regulatory action to correct this
SIP deficiency.
    We ask any state or local permitting agency that does not
believe its existing SIP provides authority to issue PSD permits to
GHG sources to notify the EPA Regional Administrator by letter, and
to do so no later than August 2, 2010. This letter should indicate
whether the state intends to undertake rulemaking to revise its
rules to apply PSD to the GHG sources that will be covered under the
applicability thresholds in this rulemaking, or alternatively,
whether the state believes it has adequate authority through other
means to issue federally-enforceable PSD permits to GHG sources
consistent with this final rule. For any state that lacks the
ability to issue PSD permits for GHG sources consistent with this
final rule, we intend to undertake a separate action to issue a SIP
call, under CAA section 110(k)(5). As appropriate, we may also
impose a FIP through 40 CFR 52.21 to ensure that GHG sources will be
permitted consistent with this final rule.

75 FR 31582/3.
    With regard to states in category 3, EPA requested that in the
states' 60-day letter,

The state should explain whether it will apply EPA's meaning of the
term ``subject to regulation'' and if so, whether the state intends
to incorporate that meaning of the term through interpretation, and
without undertaking a regulatory or legislative process. If a state
must undertake a regulatory or legislative process, then the letter
should provide an estimate of the time needed to adopt the final
rules. If a state chooses not to adopt EPA's meaning by
interpretation, the letter should address whether the state has
alternative authority to implement either our tailoring approach or
some other approach that is at least as stringent, whether the state
intends to use that authority. If the state does not intend to
interpret or revise its SIP to adopt the tailoring approach or such
other approach, then the letter should address the expected
shortfalls in personnel and funding that will arise if the state
attempts to carry out PSD permitting for GHG sources under the
existing SIP and interpretation.
    For any state that is unable or unwilling to adopt the tailoring
approach by January 2, 2011, and that otherwise is unable to
demonstrate adequate personnel and funding, we will move forward
with finalizing our proposal to limit our approval of the existing
SIP.

75 FR 31582/3.
    On August 2, 2010, Texas submitted its 60-day letter, signed by the
Texas Attorney General and the Chairman of the Texas Commission on
Environmental Quality.\66\ In that letter, Texas responded specifically
to EPA's request that ``any state * * * that does not believe its
existing SIP provides authority to issue PSD permits to GHG sources to
notify [EPA and] * * * indicate whether the state intends to * * * to
revise its rules to apply PSD to * * * GHG sources'' by stating:
``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.'' Id. p. 1. Texas offered several explanations
for this position. First, Texas noted:
---------------------------------------------------------------------------

    \66\ Letter from Bryan W. Shaw, Chairman, Texas Commission on
Environmental Quality, and Greg Abbott, Attorney General of Texas,
to Hon. Lisa Jackson, Administrator, U.S. Environmental Protection
Agency, and Dr. Alfredo ``Al'' Armendariz, Regional Administrator,
U.S. Environmental Protection Agency, Region 6 (August 2, 2010)
(Texas's 60-day letter), included in the docket for this rulemaking.

    Texas' stationary source permitting program encompasses all
``federally regulated new source review pollutants,'' including,
``any pollutant that otherwise is subject to regulation under the
[federal Clean Air Act].'' 30 Tex. Admin. Code Sec.  116.12(14)(D).
The rules of the Texas Commission on Environmental Quality (TCEQ),
like the EPA's rules, do not define the phrase ``subject to
---------------------------------------------------------------------------
regulation.''

Id. p. 2. Texas then explained that it had several objections to
interpreting the phrase ``subject to regulation'' to allow regulation
of GHGs. For one thing, according to Texas, long-standing state case
law precluded the term--and the PSD applicability provisions
generally--from automatically incorporating newly regulated pollutants.
Specifically, Texas said: \67\
---------------------------------------------------------------------------

    \67\ In this explanation, Texas was referring to the PSD
applicability provision that Texas adopted under State law in 2006,
which differed slightly from the applicability provision approved
into the SIP in 1993.

* * *Texas' stationary source permitting program encompasses all
``federally regulated new source review pollutants,'' including
``any pollutant that otherwise is subject to regulation under the
[federal Clean air Act].'' 30 Tex. Admin. Code Sec.  116.12(14)(D).
This delegation of legislative authority to the EPA is limited
solely to those pollutants regulated when Texas Rule 116.12 was
adopted (1993) and last amended (2006). As the Texas Supreme Court
has explained, ``The general rule is that when a statute is adopted
by a specific descriptive reference, the adoption takes the statute
as it exists at that time, and the subsequent amendment thereof
would not be within the terms of the adopting act.'' Trimmer v.
Carlton, 296 S.W. 1070 (1927). Thus, in order for Texas Rule 116.12
to pass constitutional muster, it must be limited to adopting by
reference the definition of ``subject to regulation'' in existence
when Rule 116.12 was last amended in 2006. In other words, Texas
Rule 116.12 cannot delegate authority to the EPA to define ``subject
to regulation'' in 2010 to include pollutants that were not
---------------------------------------------------------------------------
``subject to regulation'' in 2006.

Id. at 4.
    Secondly, Texas took the position that PSD applies only to NAAQS
pollutants, and not non-NAAQS pollutants. Texas stated:

    The only sensible interpretation of the Clean Air Act is one
that requires the EPA to promulgate a National Ambient Air Quality
Standard (NAAQS) for greenhouse gases before the EPA can require PSD
permitting of greenhouse gases.* * * EPA, however, has not developed
a NAAQS for greenhouse gases. * * *

Id. at 4-5.

    Texas provided a more detailed exposition of its view that PSD
applies

only to NAAQS pollutants in its challenges before the D.C. Circuit to
EPA's GHG actions, where Texas moved to stay the Endangerment Finding,
the Vehicle Rule, and the Johnson Memo Reconsideration (Texas's Motion
to Stay Three GHG Actions).\68\ (In a separate motion, Texas also moved
to stay the Tailoring Rule.\69\) There, Texas reiterated arguments
based on the text of some of the CAA PSD provisions that, in Texas's
view, lead to the conclusion that the CAA precludes applying PSD to
non-NAAQS. As noted previously, these arguments were raised by
commenters to the Tailoring Rule. Texas concluded that EPA's efforts to
apply PSD to GHGs--
---------------------------------------------------------------------------

    \68\ ``State of Texas's Motion For A Stay Of EPA's Endangerment
Finding, Timing Rule, and Tailpipe Rule,'' Coalition for Responsible
Regulation v. EPA, No. 09-1322 (and consolidated cases) (September
15, 2010). On December 10, 2010, the DC Circuit denied Texas's, and
other parties', motions to stay. Order, Coalition for Responsible
Regulation v. EPA, No. 09-1322 (and consolidated cases) (December
10, 2010).
    \69\ ``State of Texas's Motion For A Stay Of EPA's Greenhouse
Gas Tailoring Rule,'' Coalition for Responsible Regulation v. EPA,
No. 09-1322 (and consolidated cases) (September 15, 2010) (Texas's
Motion to Stay the Tailoring Rule).

Thus violates the CAA. Moreover, [EPA's] interpretation of the CAA
is not entitled to deference because the text of the statute is
unambiguous. Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842 (1984) (the
Agency must give effect to the unambiguously expressed intent of
Congress). Accordingly, EPA's attempt to short cut the CAA's NAAQS
process in order to regulate GHG emissions from stationary sources
through PSD and Title V must fail.\70\
---------------------------------------------------------------------------

    \70\ Texas's Motion to Stay Three GHG Actions, at 27.

    At the close of its 60-day letter, Texas added, ``In the event a
court concludes EPA's actions comport with the law, Texas specifically
reserves and does not waive any rights under the federal Clean Air Act
or other law with respect to the issues raised herein.'' \71\
---------------------------------------------------------------------------

    \71\ Id. at 5.
---------------------------------------------------------------------------

b. Texas's 30-Day Letter
    As noted previously, in the GHG PSD SIP call proposal, EPA proposed
to establish, for each affected state, a deadline of 12 months from the
date of signature of the final SIP call for submitting the corrective
SIP revision, unless the state expressly advised EPA in its 30-day
letter that it would not object to a shorter period. Texas submitted a
30-day letter on October 4, 2010,\72\ and in that letter, voiced
various objections to the proposed SIP call. Texas reiterated its view
that PSD is limited to NAAQS pollutants, and therefore cannot apply to
GHGs, and added that the SIP call is ``based on an impermissible
interpretation of the [Clean Air Act]. EPA cannot * * * impose
permitting through [the PSD] program without first setting a NAAQS. * *
* '' Texas 30-day letter p. 2, 4. EPA responded to those objections in
the final SIP call.\73\
---------------------------------------------------------------------------

    \72\ ``Texas Commission on Environmental Quality Comments on
Actions to Ensure Authority to Issue Permits Under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions, Finding of Substantial Inadequacy and SIP Call, Docket ID
No. EPA-HQ-OAR-2010-0107, FRL-9190-7 Federal Implementation Plan
(FIP), Docket ID No EPA-HQ-OAR-2010-0107, FRL-9190-8 (October 4,
2010) (Texas 30-day letter).
    \73\ Final SIP Call, 75 FR at 77706/2-3 and n. 18.
---------------------------------------------------------------------------

    In its 30-day letter, Texas went on to discuss the SIP submission
schedule and FIP that EPA proposed, but Texas declined EPA's invitation
to identify a specific deadline for the state's SIP submission. As a
result, in the final SIP call, EPA was obliged to establish the default
SIP submission deadline for Texas of December 1, 2011, in accordance
with EPA's proposal. Because Texas has clearly stated that it does not
intend, and, in its view, does not have the authority, to adopt a SIP
revision to apply PSD to GHG-emitting sources, EPA expects to
promulgate a FIP to do so. But, again, because Texas did not identify
an earlier deadline for its SIP submittal, the earliest that EPA could
promulgate such a FIP would be December 2, 2011. Under this approach,
due to the position Texas has taken, absent further action, sources in
Texas could not expect to have a permitting authority with authority to
issue preconstruction permits for their GHG emissions until that
December 2, 2011 date. As a result, absent further action, sources in
Texas would face obstacles in constructing or modifying before that
date.
    Texas's 30-day letter indicates that Texas was well aware of the
consequences of its decision not to identify a specific deadline for
its SIP submission, but had several reasons for making that decision.
These included its view, again, that PSD applies only to NAAQS
pollutants, and also that EPA was required to employ a different
process for requiring a SIP revision, one that would have provided the
state with more time to adopt a SIP revision. Texas 30-day letter at 4-
5. In addition, Texas asserted that there is no reason to allow EPA to
promulgate an early FIP for the benefit of Texas's sources because, in
Texas's view, for practical reasons, EPA could not issue those permits
for the ``foreseeable future'' anyway. Specifically, Texas explained
that EPA had not issued guidance for determining BACT, the key element
of a PSD permit for a GHG source. Texas added that even after EPA
issued that guidance, BACT will, in Texas's view, remain uncertain and
contentious, and the guidance will be of limited usefulness until the
control technology is proven. Id. at 5. Texas added that ``[i]ndustry
should be particularly concerned about EPA's lack of resources and
experience to issue these permits * * *.'' Id. at 6. Texas concluded,
``The result of all this is that, even under a FIP, it is unlikely that
construction of new major GHG sources or major modifications will
commence in the foreseeable future.'' Id. at 6.
    It should be noted that Texas stated in filings before the D.C.
Circuit in which it challenged the Tailoring Rule that it believed 167
projects in Texas would be affected by the lack of a permitting
authority during 2011.\74\
---------------------------------------------------------------------------

    \74\ Texas's Motion to Stay the Tailoring Rule, pp. 2, 16.
---------------------------------------------------------------------------

IV. Interim Final Action

    In this action, EPA is taking the following actions on an interim
final basis to ensure that the PSD program in Texas complies with the
CAA. First, EPA is determining that the Administrator's action
approving the Texas SIP PSD program was in error under CAA section
110(k)(6).
    Second, EPA, in the same manner as its action to approve the Texas
SIP PSD program, is revising such action as appropriate without
requiring any further submission from Texas. Id. The appropriate
revision is to convert the previous approval to a partial approval and
a partial disapproval. The partial approval applies to the extent that
Texas's PSD program actually covers pollutants that are required to be
included in PSD. The partial disapproval applies to the extent that
Texas failed to address or to include assurances of adequate legal
authority (required under CAA section 110(a)(2)(E)(i)) for the
application of PSD to each newly regulated pollutant, including non-
NAAQS pollutants, under the CAA. Note that as an alternative basis to
CAA section 110(k)(6) for taking these first two steps, EPA relies on
its inherent administrative authority to reconsider its previous
action.
    Third, in this rulemaking, EPA is promulgating a FIP to apply
appropriate measures to assure that EPA's PSD regulatory requirements
will apply to non-NAAQS pollutants that are newly subject to regulation
under the CAA that the Texas PSD program does not already cover. At
present, the only such pollutant is GHGs. Therefore, EPA's FIP will at
present apply the EPA regulatory PSD program in the GHG portion of PSD

permits for GHG-emitting sources in Texas, and EPA commits to take
whatever steps are appropriate if, in the future, Texas fails to apply
PSD to another newly regulated non-NAAQS pollutant.
    In light of the immediate need of Texas's GHG-emitting sources for
a permitting authority to process their permit applications for GHGs,
EPA is promulgating this action immediately though an interim final
rule, in reliance on the good cause exemption from notice-and-comment
rulemaking under section 553(b)(3)(B) of the Administrative Procedures
Act. This action will remain in effect until April 30, 2011. At the
same time, EPA is initiating a notice-and-comment rulemaking that
mirrors this one and that EPA expects to replace this one.

A. Determination That EPA's Previous Approval of Texas's PSD Program
Was in Error

    In applying CAA section 110(k)(6), EPA must first ``determine[]
that the Administrator's action approving * * * [the Texas PSD program]
was in error * * *.'' EPA has determined that the Texas PSD program had
flaws at the time Texas submitted it and EPA approved it, so that EPA's
approval was in error.
1. Gaps in Texas's PSD Program Concerning Application of PSD to
Pollutants Newly Subject to Regulation and Concerning Assurances of
Legal Adequacy
    Texas's PSD program, although approved by EPA, contained important
gaps concerning the application of PSD to pollutants newly subject to
regulation, including non-NAAQS pollutants, and Texas's legal authority
for doing so.
    a. Gaps in Texas's PSD Program at the Time of EPA Approval
    The application of the PSD program to pollutants newly subject to
regulation, including non-NAAQS pollutants, is a key component of the
program. As noted earlier, it is EPA's long-standing position that PSD
applies to all such pollutants, and most of the states' PSD programs do
apply to such pollutants automatically, as soon as those pollutants
become subject to regulation.
    In particular, as noted previously, EPA had previously made clear
to Texas, during 1980 and again during 1983, that PSD applies to non-
NAAQS pollutants. Because Texas's PSD program, unlike that of most
states, did not automatically apply to such pollutants, it was
important that during the time when Texas submitted SIP revisions and
EPA acted on them, 1985-1992, that Texas address the application of PSD
to pollutants newly subject to regulation.
    It is clear from the record that both Texas and EPA were well aware
that the Texas PSD rules' IBR of EPA PSD regulatory requirements did
not automatically update. Indeed, when EPA promulgated the NAAQS for
PM10, a previously unregulated pollutant, and thereby
subjected that pollutant to PSD for the first time, Texas revised its
PSD rules to update the IBR and thereby assure that the state PSD
program applied to PM10.
    Had Texas recognized that following approval of its PSD program,
EPA would likely continue to subject previously unregulated pollutants
to regulation, and therefore to PSD for the first time, Texas could
have addressed how it would handle that situation. Texas could have
provided both assurances that the state would apply PSD to such
pollutants and information as to the method and timing for doing so.
The most likely method would be through a separate SIP revision. The
timing would most likely relate to the time necessary to adopt and
submit a SIP revision. This timing issue is important because the
sources emitting pollutants are subject to PSD under the CAA as soon as
the pollutants become subject to regulation, but if the SIP PSD program
does not automatically apply to the sources, then the state does not
have authority to issue permits to the sources as soon as the sources
become required to obtain the permits. By comparison, as noted earlier
in this preamble, Texas committed to submit a SIP revision if a SIP
inadequacy led to an increments violation.
    However, there is no indication in the record of Texas's SIP
submissions that Texas specifically addressed this issue of the
treatment of pollutants that would newly become subject to PSD after
Texas's PSD SIP was approved, or that Texas provided any such
information as to method or timing. Nor is there any indication in the
record that during this 1985-92 period, EPA identified this issue and
sought such information from Texas.
    Texas did provide the 1987 Texas PSD Commitments Statement, in
which Texas agreed to ``implement and enforce the federal requirements
for [PSD] as specified in [EPA regulations] by requiring all new major
stationary sources and major modifications to obtain air quality
permits as provided in TACB regulation VI, Control of Air Pollution by
Permits for New Construction and Modification.'' However, this 1987
statement does not specifically address the application of PSD to
pollutants newly subject to regulation. It commits TACB to require
``all new major stationary sources and major modifications to obtain
air quality permits as provided in TACB regulation VI * * * '', but
that regulation VI does not automatically update.
    Texas also provided the 1989 Texas PSD Commitments Letter, in which
Texas generally committed ``to implement EPA requirements relative to
[PSD].'' However, as quoted previously, this letter was phrased
generally and did not specifically commit to apply PSD to pollutants
newly subject to regulation, including non-NAAQS pollutants; nor did
the letter identify the method and timing for doing so. Accordingly, we
do not read this letter as a commitment by Texas to apply PSD to each
newly regulated pollutant, including non-NAAQS pollutants, whether
through a SIP revision or some other method, or on any particular time-
table. Moreover, although EPA approved the Texas PSD program in
reliance on the letter, EPA indicated, in the final approval preamble,
that the scope and binding impact of the letter were limited and that
Texas retained discretion in implementing the PSD program.
    In addition, the rulemaking record for Texas's PSD program does not
indicate that Texas provided, as required under CAA Sec.
110(a)(2)(E)(i), assurances that Texas had adequate legal authority to
carry out the PSD program, including, insofar as relevant for this
rulemaking, applying PSD to pollutants newly subject to regulation,
among them non-NAAQS pollutants. Some 15 years previously, in Texas's
1972 submission of its original SIP, the state had provided assurances
of legal authority to carry out the SIP, and EPA had approved those
assurances. But the record for the PSD SIP submission does not indicate
whether, or how, that legal authority applied to PSD applicability to
such pollutants. In submitting the PSD SIP program, the TACB provided
general references to legal authority, but the TACB did not indicate
whether PSD applies to such pollutants either. Nor did the Texas PSD
Commitments Letter specifically identify legal authority to apply PSD
to such pollutants. Nor did the assurance of legal authority to apply
the Texas PSD program to large municipal waste combustors, as required
by the 1990 CAA Amendments, which assurances Texas apparently made in a
1992 conference call with EPA Region 6 officials, address legal
authority to apply PSD to pollutants that newly become subject to PSD
as a result of EPA regulation.
    Therefore, the Texas PSD SIP submittal contained gaps: It did not

address the application of PSD to pollutants newly subject to
regulation, including non-NAAQS pollutants; and it did not include any
information concerning Texas's methods or timing for doing so. Nor did
the program provide assurances that the state had adequate legal
authority to apply PSD to such pollutants.
b. Recent Statements by Texas That Confirm the Gaps in Texas's PSD
Program
    Texas has recently made several statements that confirm that at the
time EPA approved the state's PSD program, that program had gaps.\75\
---------------------------------------------------------------------------

    \75\ As noted previously, Texas has also recently confirmed, in
Texas' 60-day letter, that its PSD program does not automatically
apply to pollutants newly subject to regulation.
---------------------------------------------------------------------------

(i). Gap Concerning Application of PSD to All Pollutants Newly Subject
to Regulation, Including Non-NAAQS Pollutants
    First, Texas has made clear that it is not required to apply PSD to
non-NAAQS pollutants that are newly subject to regulation, including
GHGs. Specifically, in its August 2, 2010 60-day letter, Texas stated
that it interprets the CAA PSD applicability provisions to apply to
only NAAQS pollutants, and therefore to not include non-NAAQS
pollutants, among them GHGs. Texas asserted that ``the only sensible
interpretation of the CAA'' is that PSD applies to only NAAQS
pollutants. Texas 60-day letter, p. 4. Similarly, in its court
challenge to EPA's four GHG rules, Texas stated that its interpretation
is mandated under Chevron step 1. There, Texas stated that EPA's
``interpretation of the CAA [that PSD applies to non-NAAQS pollutants]
is not entitled to deference because the text of the statute is
unambiguous. Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842 (1984) (the
Agency must give effect to the unambiguously expressed intent of
Congress).'' \76\ As noted previously, EPA responded at length to this
argument in the Tailoring Rule and in EPA's response in the court
challenge to EPA's GHG rules. EPA asserts that the CAA mandates that
PSD apply to non-NAAQS pollutants, including GHGs, once they become
subject to regulation; and EPA is not reopening this issue on the
merits in this rulemaking.
---------------------------------------------------------------------------

    \76\ See Texas ``Motion to Stay Three GHG Actions'' 27,
Coalition for Responsible Regulation v. EPA, No. 09-1322 (and
consolidated cases).
---------------------------------------------------------------------------

    For present purposes, however, what is important is that Texas
takes the position that under a Chevron step 1 reading of the CAA, the
PSD program does not apply to non-NAAQS pollutants. This position has
important ramifications for how Texas must interpret EPA's PSD
applicability regulations and for the meaning of Texas's SIP PSD
applicability provisions. As noted previously, under EPA's current
regulations, PSD applies to ``any pollutant that otherwise is subject
to regulation under the [CAA].'' 52.166(b)(49)(iv). These regulations
have read this way since they were revised in EPA's 2002 NSR Reform
Rule, and the regulations that predated them were phrased in much the
same way: They applied PSD to ``any air pollutant regulated under the
Clean Air Act.'' \77\ These regulations are based on the CAA PSD
applicability requirements, and as a result, cannot apply PSD to any
pollutants that the CAA does not itself subject to PSD. Accordingly,
although Texas did not specifically address the meaning of EPA's
regulations in its 60-day letter or court filings, it must be that in
Texas's view, these EPA regulations may lawfully apply PSD to only
NAAQS pollutants.
---------------------------------------------------------------------------

    \77\ See 43 FR 26380, 26403/3, 26406 (June 19, 1978)
(promulgating 40 CFR 51.21(b)(1)(i)) and 42 FR 57479, 57480, 57483
(November 3, 1977) (proposing 40 CFR 51.21(b)(1)(i)) (applying PSD
requirements to a ``major stationary source'' and defining that term
to include sources that emit specified quantities of ``any air
pollutant regulated under the Clean Air Act'').
---------------------------------------------------------------------------

    Texas's SIP PSD applicability provisions, in turn, mirror EPA's. As
quoted earlier, Texas's EPA-approved PSD applicability provisions apply
PSD to ``any air pollutant subject to regulation under the [Clean Air]
Act.'' Although these Texas provisions mirror EPA's regulatory
applicability provisions--which, again, Texas appears to interpret as
limited to applying PSD only to NAAQS pollutants--Texas is authorized
to apply them more expansively than the EPA regulations. This is
because a state must comply with CAA requirements as a minimum, but
retains authority to impose additional or more stringent requirements.
CAA section 116. Therefore, it is in accordance with Texas's view that
the CAA and EPA regulatory requirements for PSD applicability be
limited to NAAQS pollutants, that Texas would nevertheless consider
itself authorized--but not required--to apply its PSD program to
particular non-NAAQS pollutants. This position would allow Texas, in
effect, to choose which non-NAAQS pollutants to subject to PSD.
    In fact, Texas has clearly stated that it does not consider itself
required to apply its PSD program to one non-NAAQS pollutant in
particular: GHGs. In its 60-day letter, Texas stated: ``Texas has
neither the authority nor the intention of interpreting, ignoring, or
amending its laws in order to compel the permitting of greenhouse gas
emissions.'' Texas 60-day letter, at 1. Texas's letter went on to
provide numerous reasons for why it did not believe EPA lawfully
subjected GHGs to PSD; why, in any event, EPA was required to allow
states more time before PSD would apply to GHG-emitting sources; and,
as noted previously, why, in any event, Texas' SIP does not
automatically update to apply PSD to newly regulated pollutants. Texas
added, ``[i]n the event a court concludes EPA's actions comport with
the law, Texas specifically reserves and does not waive any rights
under the federal Clean Air Act or other law with respect to the issues
raised here.'' Texas 60-day letter, p. 5. With this statement, Texas
intimated that it may not consider itself obligated to apply PSD to
GHGs even if a Court dismissed all of Texas's arguments and upheld all
of EPA's actions that lead to the requirement to apply PSD to GHGs.
    With these two statements--that (i) ``Texas has neither the
authority nor the intention of interpreting, ignoring, or amending its
laws in order to compel the permitting of greenhouse gas emissions,''
and (ii) Texas would not necessarily consider itself bound by EPA
requirements even if those requirements are upheld in Court--Texas has
made clear that it does not view itself as obligated to apply PSD to
GHGs under the CAA. Thus, these statements confirm Texas's view that it
is not obligated to apply PSD to each newly regulated non-NAAQS,
including, of course, GHGs.\78\
---------------------------------------------------------------------------

    \78\ It should be noted that Texas has applied its PSD program
to non-NAAQS pollutants because Texas has IBR'd EPA's PSD regulatory
requirements and those requirements apply to non-NAAQS pollutants.
However, as noted earlier, Texas has made clear that it has no
intention of submitting a SIP revision to apply PSD to GHGs. All
this is consistent with the view described previously that Texas
interprets its PSD applicability provision to authorize it to apply
PSD to non-NAAQS pollutants at Texas's discretion, but that Texas
does not view itself as required to apply PSD to non-NAAQS
pollutants.
---------------------------------------------------------------------------

    These statements from Texas are significant because they confirm
that Texas's PSD program, as approved by EPA, had an important gap:
Texas did not address the applicability of its PSD program to
pollutants newly subject to regulation, including non-NAAQS pollutants,
such as by providing assurances that Texas would take action to apply
PSD to such pollutants or describing the methods (such as SIP revision)
and timing for doing so.

Moreover, Texas's recent statements are consistent with the view that
Texas's silence on the subject at the time of the PSD SIP action means
that Texas did not, at that time, view itself as obligated to apply PSD
to each pollutant.\79\
---------------------------------------------------------------------------

    \79\ By the same token, we see nothing in these recent
statements to indicate that Texas views itself as rescinding any
pre-existing understanding that it would apply PSD to each such
pollutant.
---------------------------------------------------------------------------

    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.\80\ 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.
---------------------------------------------------------------------------

    \80\ 57 FR at 28095/2, 28096/1.
---------------------------------------------------------------------------

    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 do so. This gap is significant because it
facilitates Texas's current position, with which EPA disagrees, that
PSD does not apply to non-NAAQS pollutants.
(ii). Gap Concerning Assurances of Adequate Legal Authority
    Texas's recent statement that it does not have the authority 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.
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. 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 its program to pollutants newly subject to regulation
or provide assurances that it legal authority to do so. 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 provide the requisite assurances--in
particular, that the 1989 Texas PSD Commitment Letter provided adequate
assurances that Texas would apply PSD to pollutants newly subject to
regulation, including non-NAAQS--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 one assumes
that Texas provided the appropriate assurances, then one should also
assume that EPA's approval would have been based on those assurances.
In fact, EPA stated in approving the Texas PSD program that EPA was
relying on the 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).

B. 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. Indeed, 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 a 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 because it has not provided assurances that its
PSD program will apply to each pollutant newly subject to regulation,
including non-NAAQS pollutants, and because it has not provided
assurances of adequate legal authority to do so.

C. 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. CAA section 110(k)(3)-(4). 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 15720, 15723 (discussing prior action
taken to limit approvals); 67 FR 69139 (taking final action to amend
prior approvals to limit their duration); 67 FR 46618 (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 provide
the requisite assurances that it would apply PSD 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 provide assurances that it will apply to pollutants
newly subject to regulation, including non-NAAQS pollutants).
D. 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 77698 (December 13, 2010). 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 submittal--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--seven of the 13--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. The other five states 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 will be no permitting authority in
place in those states to issue GHG permits on January 2, 2011, when
GHG-emitting sources become 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.''
\81\ 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.
---------------------------------------------------------------------------

    \81\ Texas's 60-day letter, p. 1.
---------------------------------------------------------------------------

    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.\82\ Moreover, Texas
indicated that during 2011, some 167 construction or modification
projects would be affected,\83\ which are significantly more sources
than any other state.
---------------------------------------------------------------------------

    \82\ Texas 30-day letter, at 5, 6; Texas ``Motion to Stay Three
GHG Actions'' 40-41, Coalition for Responsible Regulation v. EPA,
No. 09-1322 (and consolidated cases).
    \83\ See Texas ``Motion to Stay Three GHG Actions'' 41,
Coalition for Responsible Regulation v. EPA, No. 09-1322 (and
consolidated cases).
---------------------------------------------------------------------------

    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, have 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/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-disapproval rulemaking at this time. By allowing EPA
to implement a FIP immediately, instead of waiting until December,
2011; EPA may act as the permitting authority in Texas beginning
January 2, 2011, and in that capacity, allow Texas sources to avoid
delays in construction or modification.
    With 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.\84\
---------------------------------------------------------------------------

    \84\ In contrast, situations could also arise in which EPA has a
basis for imposing a SIP call but not issuing an error correction
because the SIP currently has a substantial inadequacy but was not
flawed at the time of its submittal and approval.
---------------------------------------------------------------------------

    This is 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.\85\
---------------------------------------------------------------------------

    \85\ In this case, the substantial inadequacy for which EPA
issued the SIP call, which was the PSD program's failure to apply to
GHGs, is narrower than the flaw in the SIP for which EPA is issuing
the error correction, which is the PSD program's failure to address,
or assure legal authority for, application of PSD to all pollutants
newly subject to regulation. In another case, it is conceivable that
the opposite would be true, that the substantial inadequacy would be
broader than the flaw in the SIP for which EPA issues the error
correction. In that case, if EPA imposed a FIP after the deadline
for SIP submittal related to the SIP call, the FIP would be broader
than the FIP imposed after the disapproval related to the error
correction.
---------------------------------------------------------------------------

    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
presently 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.
    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.\86\ 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 FIP. 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.
---------------------------------------------------------------------------

    \86\ We recognize that Texas has indicated that it does not
intend to submit a SIP revision, but this does not eliminate the
utility of establishing a SIP submittal schedule.
---------------------------------------------------------------------------

    It is true that one of the purposes of the SIP call, as applied
here, is 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.\87\ Texas's expressed opposition to a FIP
does not preclude EPA from imposing one as justified through the
present rulemaking.
---------------------------------------------------------------------------

    \87\ In any event, to conclude that the promulgation of a FIP
under this error-correction rulemaking compromised the SIP call
rulemaking would be tantamount to concluding that the SIP call
should somehow take priority over this error correction. There would
be no basis for taking that position. Each action is fully
justifiable in its own right. The process of completing one before
the other does not give the first one a priority simply because it
is first any more than that process would give the second a priority
because the latter is more recent.
---------------------------------------------------------------------------

    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 77710/2. 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,'' \88\ 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 uncertain over how
to apply PSD requirements to GHG-emitting sources.\89\ 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.
---------------------------------------------------------------------------

    \88\ Texas 60-day letter, p. 1.
    \89\ Texas 30-day letter.
---------------------------------------------------------------------------

    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 (DC 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.

E. 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.

V. Federal Implementation Plan

A. 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 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.

B. 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 53889/2.
    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.

C. Substance of GHG PSD FIP

1. Components of FIP
    The FIP consists of two components. The first mirrors the GHG PSD
FIP that EPA is promulgating 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
constitutes 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 53889/3 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.
2. 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 for all other pollutants--
will require close 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.
    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.

D. 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 53889/2-3.

    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 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.

E. 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 on January 2, 2011. 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.

VI. Interim Final Rule, Good Cause Exception

    EPA is issuing this action as an interim final rule. As an interim
final rule, this action is time-limited. It will be effective from the
date of signature until the earlier of April 30, 2011 or the date that
EPA promulgates final rules on its proposals for (i) a partial approval
and partial disapproval of Texas's PSD SIP and (ii) a FIP for Texas's
PSD program and those final rules take effect.
    The present rule is effective upon publication, without first
undergoing notice and comment. Under APA section 553, a federal agency
generally must provide for public notice and comment prior to
finalizing an agency rule. However, this obligation is excused, under
APA section 553(b)(3)(B), ``when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefore in
the rules issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.'' While
the good cause exception is to be narrowly construed, Utility Solid
Waste Activities Group v. Environmental Protection Agency, 236 F.3d
749, 754 (DC Cir. 2001), it is also ``an important safety valve to be
used where delay would do real harm.'' U.S. Steel Corp. v. U.S.
Environmental Protection Agency, 595 F.2d 207, 214 (5th Cir. 1979).
Notice and comment is impracticable where ``an agency finds that due
and timely execution of its functions would be impeded by the notice
otherwise required.'' Utility Solid Waste Activities Group, 236 F.3d at
754. Notice and comment is contrary to the public interest where ``the
interest of the public would be defeated by any requirement of advance
notice.'' Id. at 755.
    Notice and comment here would be contrary to the public interest.
As discussed previously, major stationary sources of GHG emissions will
be subject to PSD permitting requirements as of January 2, 2011, a date
which is rapidly approaching. As of that date, no major stationary
source emitting GHG at or above the levels set in the Tailoring Rule
will be able to construct or modify without first obtaining a permit
for its GHG emissions. In the absence of this rule, such sources will
have no permitting authority from which to obtain such a permit.
Without a permitting authority in place, sources would be subject to
delays in construction or modification, causing economic harm to those
sources and to others secondarily affected.
    Specifically, the State of Texas has estimated that 167 sources
will require GHG permits in 2011.\90\ This is a substantial number of
entities and the economic harm that they face as a result of permitting
delays could affect a substantial number of related entities,
employees, shareholders, and the public.
---------------------------------------------------------------------------

    \90\ ``State Of Texas's Motion for Stay of EPA's Endangerment
Finding, Time Rule and Tailpipe Rule,'' Coalition for Responsible
Regulation v. EPA, No. 09-1322 (and consolidated cases) at 41.
---------------------------------------------------------------------------

    This rule serves the necessary function of ensuring that a
permitting authority is available to issue permits for these sources,
and thus that large sources in Texas do not face a long delay in their
ability to construct or modify. The public interest would certainly be
hindered if EPA did not act now to ensure that economic progress is not
impeded by a lack of access to an authorized permitting authority.
    The good cause exception also applies here because of the
impracticability of notice and comment. EPA only recently became aware
that no GHG PSD permitting authority would be authorized to issue
permits to Texas sources on January 2, 2011, and thus had insufficient
time to seek public comment before acting. As discussed previously,
Texas submitted its 60-day letter to EPA on August 2, 2010; it
submitted its Motion to Stay Three GHG Actions on September 15, 2010;
and it submitted its 30-day letter to EPA on October 4, 2010. It was
only after having received and analyzed all of these recent documents
that it became clear that, due to underlying flaws in the Texas SIP PSD
program and to Texas's position regarding amending its SIP or seeking a
FIP, all as described earlier, no permitting authority had authority to
issue GHG PSD permits as of January 2, 2011, and that there was no
other way besides this rulemaking action to ameliorate that situation
in a timely manner. The EPA's agency functions would be compromised if
it must impose legal obligations on sources when sources have no legal
means to fulfill those obligations. In light of the limited time frame
and the harmful effects on sources if this action is delayed, notice
and comment is impracticable.
    In addition, the public has had and will have some opportunity to
comment. The public was given the opportunity to comment on some of the
issues in this action in response to proposals for the Tailoring Rule
and the GHG PSD SIP call. This rule is also only an interim rule; the
public will be given full opportunity to comment on the permanent rule
that EPA is concurrently proposing, which mirrors this rule. By issuing
this rule as an interim final rule, paired with a comment period on the
proposal for more permanent action, EPA is providing as much
opportunity for notice and comment as possible on the issues presented
by this rule, and is striving to replace this rule with a rule
encompassing that further comment as soon as is reasonably possible.
    For the same reasons cited earlier, EPA finds that there is good
cause for this rule to take immediate effect. In addition, since this
is not a major rule under the Congressional Review Act, the 60-day
delay in effective date

required for major rules under the CRA does not apply.
    EPA is taking this action to do an error correction under CAA
section 110(k)(6) ``in the same manner as [EPA's previous] approval''
of the Texas PSD program. The term ``in the same manner'' is not
defined by statute, and it therefore takes on its ordinary, everyday
meaning. It is a broad term, and thus undergoing any proper type of
rulemaking process should be considered to be ``in the same manner'' as
undergoing a proper rulemaking process of any other type. Both the
original approval of Texas's SIP and this action are rulemakings,
conducted in accordance with the rulemaking process. It is immaterial
that the original approval underwent notice and comment, and this
action is subject to the good cause exception, since both of these
processes are provided for by the prescribed agency rulemaking process.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.

B. Paperwork Reduction Act

    This action 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)
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2060-0003. The OMB control
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    This interim final rule is not subject to the Regulatory
Flexibility Act (RFA) which generally requires an agency to prepare a
regulatory flexibility analysis for any rule that will have a
significant economic impact on a substantial number of small entities.
The RFA applies only to rules subject to notice-and-comment rulemaking
requirements under the APA or any other statute. This rule is not
subject to notice-and-comment requirements under the APA or any other
statute because, although the rule is subject to the APA, the agency
has invoked the ``good cause'' exemption under 5 U.S.C. 553(b);
therefore, it is not subject to the notice and comment requirement.
    Notwithstanding the previous conclusion, EPA is publishing a
proposed rule in this Federal Register that mirrors this interim final
rule, and the applicability of the RFA is addressed further in that
proposed rule.

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. 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, 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 is specifically soliciting comment on the proposed
rule also published in this Federal Register that mirrors this interim
final rule.

F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action,
EPA is not addressing any tribal implementation plans. This action is
limited to 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 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because 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 28355 (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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898--Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
    EPA has determined that this interim 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 December
30, 2010. 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).

VIII. 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--lead
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
determination 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 February
28, 2011.

IX. Statutory Authority

    The statutory authority for this action is provided by sections
101, 110, 114, 116, 160-169, and 301 of the CAA as amended (42 U.S.C.
7401, 7410, 7414, 7416, 7470-7479, and 7601).

List of Subjects in 40 CFR Part 52

    Air pollution control, Carbon dioxide, Carbon dioxide equivalents,
Carbon monoxide, Environmental protection, Greenhouse gases,
Hydrofluorocarbons, Incorporation by reference, Intergovernmental
relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone,
Particulate matter, Perfluorocarbons, Reporting and recordkeeping
requirements, Sulfur hexafluoride, Sulfur oxides, Volatile organic
compounds.

    Dated: December 23, 2010.
Lisa P. Jackson,
Administrator.

0
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]

0
1. The authority citation for part 52 continues to read as follows:

     Authority:  42 U.S.C. 7401 et seq.

0
2. Section 52.2303 is amended by adding paragragh (d) to read as
follows:

Sec.  52.2303  Significant deterioration of air quality.

* * * * *
    (d)(1) The Texas PSD SIP is partially disapproved as of December
30, 2010 because the Texas PSD SIP fails to apply to pollutants newly
subject to regulation, including the pollutant greenhouse gases (GHGs)
from stationary sources described in Sec.  52.21(b)(49)(iv).
    (2) The requirements of sections 160 through 165 of the Clean Air
Act are not met to the extent the plan, as approved, does not apply
with respect to emissions of pollutants subject to regulation under the
Clean Air Act, including the pollutant GHGs from certain stationary
sources as of January 2, 2011. Therefore, from January 2, 2011 through
April 30, 2011, the provisions of Sec.  52.21 except paragraph (a)(1)
are hereby made a part of the plan for the

pollutant GHGs from stationary sources described in Sec.
52.21(b)(49)(iv). In addition, the United States Environmental
Protection Agency shall take such action as is appropriate to assure
the application of PSD requirements to any other pollutants that become
subject to regulation under the federal Clean Air Act for the first
time after January 2, 2011.
    (3) For purposes of this section, the ``pollutant GHGs'' refers to
the pollutant GHGs, as described in Sec.  52.21(b)(49)(i).

[FR Doc. 2010-32786 Filed 12-29-10; 8:45 am]
BILLING CODE 6560-50-P