[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Rules and Regulations]
[Pages 2591-2596]
[FR Doc No: 2011-769]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2010-0107; FRL-9253-2]

Action To Ensure Authority To Issue Permits Under the Prevention
of Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Failure To Submit State Implementation Plan
Revision Required of Louisville Metro Air Pollution Control District
for Jefferson County, KY

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is making a finding that the Louisville Metro Air
Pollution Control District (LMAPCD) has failed to submit a revision to
its EPA-approved state implementation plan (SIP) for Jefferson County,
Kentucky, to satisfy requirements of the Clean Air Act (CAA) to apply
Prevention of Significant Deterioration (PSD) requirements to
greenhouse gas (GHG)-emitting sources. By notice dated December 13,
2010, EPA issued a ``SIP call'' for 13 states (comprising 15 state and
local programs, including Kentucky's LMAPCD), requiring each state to
revise its SIP as necessary to correct the SIP's failure to apply PSD
to such sources and establishing a SIP submittal deadline for each
state. By this action, EPA is making a finding that the LMAPCD has
failed to submit the required SIP revision by January 1, 2011, which is
the SIP submittal deadline that EPA established in the SIP call for
LMAPCD. This finding requires EPA to promulgate a federal
implementation plan (FIP) for Jefferson County, Kentucky, applying PSD
to GHG-emitting sources, and EPA is taking a separate action to
promulgate the FIP immediately.

DATES: This action is effective on January 14, 2011.

ADDRESSES: EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2010-0107. All documents in the docket are
listed in the http://www.regulations.gov index. Although listed in the
index, some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the
U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the Air
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>For information regarding the Louisville
Metro Air Pollution Control District permitting authority, contact Ms.
Lynorae Benjamin, Chief, Regulatory Development Section, Air Planning

Branch, Air, Pesticides, and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. Ms. Benjamin's telephone number is (404)
562-9040; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Jefferson County, Kentucky, is the only entity affected by this
rule.\1\ By this action, EPA is making a finding of failure to submit
the required SIP for the LMAPCD because its EPA-approved SIP PSD
program does not apply to GHG-emitting sources in Jefferson County,
Kentucky. This action only applies to Jefferson County, Kentucky, and
does not apply to the remainder of the Commonwealth of Kentucky. On
December 13, 2010, the Kentucky Division of Air Quality provided EPA
with the required corrective SIP revision to address PSD requirements
related to GHG-emitting sources for all other areas in Kentucky. On
December 29, 2010, EPA took final action to approve the Commonwealth's
December 13, 2010, SIP revision. See 75 FR 81868.
---------------------------------------------------------------------------

    \1\ In a final action published on December 29, 2010, EPA
announced that the Agency made a separate finding of failure to
submit for seven other states (comprising eight state and local
programs) because those states failed to provide required SIP
revisions to correct their EPA-approved SIP PSD programs for
applicability to GHG-emitting sources by the established deadlines
for those states. See 75 FR 81874. For convenience, we refer to
``states'' in this rulemaking to collectively mean state and local
permitting authorities. The seven states addressed in EPA's December
29, 2010, rulemaking are Arizona, Arkansas, Florida, Idaho, Kansas,
Oregon, and Wyoming. In Arizona, the finding applies to two EPA PSD
permit programs--``Pinal County'' and ``Rest of State (Excludes
Maricopa County, Pima County, and Indian County).''
---------------------------------------------------------------------------

B. How is the preamble organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. How is the preamble organized?
II. Background
    A. CAA and Regulatory Context
    1. SIP PSD Requirements
    2. SIP Inadequacy and Corrective Action
    B. Recent EPA Regulatory Action Concerning PSD Requirements for
GHG-Emitting Sources
    III. Final Action: Finding of Failure of Kentucky's Louisville
Metro Air Pollution Control District To Submit a Corrective SIP
Revision
IV. Statutory and Executive Order Reviews
    A. Notice and Comment Under the Administrative Procedure Act
(APA)
    B. Executive Order 12866--Regulatory Planning and Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform
    F. Executive Order 13132--Federalism
    G. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045--Protection of Children From
Environmental Health Risks and Safety Risks
    I. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898--Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    L. Congressional Review Act
V. Judicial Review
VI. Statutory Authority

II. Background

A. CAA and Regulatory Context

    EPA described the relevant background information in the proposed
and final rulemaking for what we call the GHG PSD SIP call or, simply,
the SIP call,\2\ as well as in what we call the Tailoring Rule.\3\ 75
FR at 31518-21. Knowledge of this background information is presumed
and will be only briefly summarized here.
---------------------------------------------------------------------------

    \2\ ``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 at 77698, 77700-04 (December 13, 2010)
(final SIP call); ``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, 53896-98 (September 2, 2010)
(proposed SIP call).
    \3\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514, 31518-21
(June 3, 2010).
---------------------------------------------------------------------------

1. SIP PSD Requirements
    In general, under the CAA PSD program, a stationary source must
obtain a permit prior to undertaking construction or modification
projects that would result in specified amounts of new or increased
emissions of air pollutants that are subject to regulation under other
provisions of the CAA. CAA sections 165(a)(1), 169(1). As we described
in the SIP call and elsewhere, several CAA provisions, taken together,
mandate that SIPs include PSD programs that are applicable to any air
pollutant that is subject to regulation under the CAA, including, as
discussed later in this preamble, GHGs on and after January 2, 2011.
CAA sections 110(a)(2)(C), 110(a)(2)(J), 161.
2. SIP Inadequacy and Corrective Action
    The CAA provides a mechanism for the correction of SIPs with
certain types of inadequacies. CAA section 110(k)(5) authorizes the
Administrator to ``find [ ] that [a SIP] * * * is substantially
inadequate to * * * comply with any requirement of this Act,'' and,
based on that finding, to ``require the State to revise the [SIP] * * *
to correct such inadequacies.'' This latter action is commonly referred
to as a ``SIP call.'' In addition, this provision provides that EPA
must notify the state of the substantial inadequacy and authorizes EPA
to establish a ``reasonable deadline[ ] (not to exceed 18 months after
the date of such notice)'' for the submission of the corrective SIP
revision.
    If EPA does not receive the corrective SIP revision by the
deadline, CAA section 110(c)(1)(A) authorizes EPA to ``find [ ] that
[the] State has failed to make a required submission.'' Once EPA makes
that finding, CAA section 110(c)(1) requires EPA to ``promulgate a
Federal implementation plan at any time within 2 years after the
[finding] * * * unless the State corrects the deficiency, and [EPA]
approves the plan or plan revision, before [EPA] promulgates such
[FIP].''

B. Recent EPA Regulatory Action Concerning PSD Requirements for GHG-
Emitting Sources

    In recent months, EPA has taken several distinct actions related to
GHGs under the CAA. Some of these, in conjunction with the operation of
the CAA, trigger PSD applicability for GHG-emitting sources on and
after January 2, 2011, but focus the scope of PSD on the largest GHG-
emitting sources. These actions include what we call the Endangerment
Finding,\4\ the Light-Duty Vehicle Rule,\5\ the Johnson Memo
Reconsideration,\6\ and the Tailoring Rule.
---------------------------------------------------------------------------

    \4\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
    \5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
    \6\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
---------------------------------------------------------------------------

    Closely related to this action, EPA promulgated the PSD GHG SIP
call, under authority of CAA section 110(k)(5). In that action,
applicable to 13 states, the Administrator issued a finding of
substantial inadequacy as well as a SIP call and established a deadline
for submission of the corrective SIP revision. The deadline

was 12 months after the date of the SIP call, unless the state
indicated to EPA that it did not object to an earlier deadline, as
early as 3 weeks after the date of the SIP call. Twelve of the states
so indicated and therefore received an earlier deadline. The LMAPCD
requested a SIP submittal deadline of January 1, 2011. 75 FR at 77705.
    All 13 states and their deadlines are listed in table II-1, ``SIP
Call States and SIP Submittal Deadlines'':

         Table II-1--SIP Call States and SIP Submittal Deadlines
------------------------------------------------------------------------
                                                           SIP submittal
                     State (or area)                         deadline
------------------------------------------------------------------------
Arizona: Pinal County...................................        12/22/10
Arizona: Rest of State (Excludes Maricopa County, Pima          12/22/10
 County, and Indian Country)............................
Arkansas................................................        12/22/10
California: Sacramento Metropolitan AQMD................        01/31/11
Connecticut.............................................        03/01/11
Florida.................................................        12/22/10
Idaho...................................................        12/22/10
Kansas..................................................        12/22/10
Kentucky (Jefferson County): Louisville Metro Air               01/01/11
 Pollution Control District.............................
Kentucky: Rest of State (Excludes Louisville Metro Air          03/31/11
 Pollution Control District (Jefferson County)).........
Nebraska................................................        03/01/11
Nevada: Clark County....................................        07/01/11
Oregon..................................................        12/22/10
Texas...................................................        12/01/11
Wyoming.................................................        12/22/10
------------------------------------------------------------------------

    The SIP submittal deadlines that the final SIP call rule
established for the states reflect, in almost all instances, a
recognition by EPA and the states of the need to move expeditiously to
assure the availability of a permitting authority. In the SIP call, EPA
made clear that the purpose of establishing the shorter period as the
deadline--for any state that advised us that it did not object to that
shorter period--is to accommodate states that wish to ensure that a FIP
is in effect as a backstop to avoid any gap in PSD permitting. 75 FR at
77710.
    Seven of the 13 SIP-called states (including 8 of the 15 affected
PSD programs) stated that they did not object to a SIP submittal
deadline of December 22, 2010 (the earliest possible deadline), 75 FR
at 77705, and those states are the subject of a final rule that EPA
issued on December 29, 2010. See 75 FR 81874. The LMAPCD requested a
SIP submittal deadline of January 1, 2011, has since missed that SIP
submittal deadline, and thus is the subject of this final rule.\7\
---------------------------------------------------------------------------

    \7\ More detailed discussion about the 13 states is included in
the Supplemental Information Document prepared by EPA in support of
the final SIP call. The Supplemental Information Document can be
found in the docket for this rulemaking, at Document ID No. EPA-HQ-
OAR-2010-0107-0129.
---------------------------------------------------------------------------

    Also closely related to this action, EPA proposed a FIP \8\ action
related to GHGs. We stated in the proposed FIP that if any of the
states for which we issued the SIP call did not meet its SIP submittal
deadline, we would immediately issue a finding of failure to submit a
required SIP revision, under CAA section 110(c)(1)(A), and immediately
thereafter promulgate a FIP for the state. We explained that we would
take these actions immediately in order to minimize any period of time
during which larger-emitting sources 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. 75 FR at
53889. Seven of the 13 SIP-called states (including 8 of the 15
affected PSD programs) stated that they did not object to a SIP
submittal deadline of December 22, 2010 (the earliest possible
deadline). Subsequently, for those seven states, EPA made a finding of
failure to submit a corrective SIP revision (75 FR at 77705; December
29, 2010) and by separate action promulgated a FIP.\9\
---------------------------------------------------------------------------

    \8\ Proposed rule, ``Action to Ensure Authority to Issue Permits
Under the Prevention of Significant Deterioration Program to Sources
of Greenhouse Gas Emissions: Federal Implementation Plan.'' 75 FR
53883 (September 2, 2010). The notice can be found in the docket for
this rulemaking, at Document ID No. EPA-HQ-OAR-2010-0107-0045.
    \9\ In a final action published on December 30, 2010, EPA
promulgated a FIP to apply to seven states (comprising eight state
and local programs) because those states failed to provide required
SIP revisions to correct their EPA-approved SIP PSD programs for
applicability to GHG-emitting sources. Final rule, ``Action to
Ensure Authority to Issue Permits under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Federal Implementation Plan.'' 75 FR 82246.
---------------------------------------------------------------------------

III. Final Action: Finding of Failure of Kentucky's Louisville Metro
Air Pollution Control District To Submit a Corrective SIP Revision

    By this final rule, EPA is making a finding under CAA section
110(c) that Kentucky's LMAPCD has failed to submit, through the
Kentucky Energy and Environment Cabinet (KEEC), a corrective SIP for
Jefferson County by January 1, 2011, which was its SIP submittal
deadline, as established under our SIP call. The LMAPCD is the air
permitting authority that administers the Jefferson County portion of
Kentucky's SIP. Although two EPA-approved PSD programs in Kentucky--
``Jefferson County'' and ``Rest of State''--were included in EPA's
recent SIP call, this finding of failure to submit applies only to
Jefferson County, Kentucky. Subsequent to EPA's SIP call, the
Commonwealth of Kentucky submitted a corrective SIP revision to apply
its PSD program to GHG-emitting sources in the remainder of the
Commonwealth of Kentucky. On December 29, 2010, EPA took final action
to approve the Commonwealth's December 13, 2010, SIP revision. See 75
FR 81868.
    As we stated in our proposed FIP rulemaking (see 75 FR at 53889),
if a state for which we issue the SIP call does not meet its SIP
submittal deadline, we would immediately issue a finding of failure to
submit a required SIP revision under CAA section 110(c)(1)(A). Once we
make that finding, we are required under CAA section 110(c) to
promulgate a FIP (unless first the state corrects the deficiency and
EPA approves the plan or plan revision). By a separate action today, we
are promulgating the FIP immediately.
    The making of a finding of failure in this final rule is important
because it is the prerequisite for the FIP, and the FIP, in turn,
establishes EPA as the permitting authority for GHG-emitting sources.
Without our acting as that authority, large GHG-emitting sources in
Jefferson County, Kentucky, may be unable to obtain a PSD permit for
their GHG emissions and therefore may face delays in undertaking
construction or modification projects. Sources that emit or plan to
emit large amounts of GHGs are, starting January 2, 2011, required to
obtain PSD permits before undertaking new construction or modification
projects, but neither the LMAPCD nor, absent the FIP, EPA would be
authorized to issue the permits. With the FIP, EPA will have the
authority to issue PSD permits for Jefferson County, Kentucky.
    This rule is effective immediately upon publication in the Federal
Register. Section 553(d) of the Administrative Procedure Act (APA), 5
U.S.C. 553(d), generally provides that rules may not take effect
earlier than 30 days after they are published in the Federal Register.
However, APA section 553(d)(3) provides an exception when the agency
finds good cause exists for a rule to take effect in less than 30 days.
    We find good cause exists here to make this rule effective upon
publication because implementing a 30-day delayed effective date would
interfere with the Agency's ability to ensure that there is a
permitting authority authorized to issue the

required PSD permits for GHG emissions to certain major stationary
sources in Jefferson County, Kentucky. A 30-day delay in the effective
date of this rule will impede implementation of this rule and create
regulatory confusion. This rule, establishing that the LMAPCD has
failed to submit a corrective SIP revision by its January 1, 2011
deadline, is necessary so that EPA can promulgate a FIP for Jefferson
County, Kentucky, soon afterward. This timing will allow the FIP to be
published and become effective as soon as possible after the January 2,
2011 date that PSD began to apply to GHG-emitting sources under the
CAA. As of January 2, 2011, certain major stationary sources in
Jefferson County, Kentucky, if seeking PSD permits for other
pollutants, are already required to obtain PSD permits for GHG
emissions where no permitting authority is authorized to issue such a
permit. However, it is impractical to wait 30 days for this rule to
take effect, during which time no permitting authority would be
authorized to issue permits to any major stationary sources that apply
to obtain PSD permits for GHG emissions. Moreover, EPA finds that it is
necessary to make this rule effective upon publication to avoid any
economic harm that the public and the regulated industry might incur if
there is no permitting authority able to issue PSD permits for GHG
emissions when such permits are requested in Jefferson County,
Kentucky.
    The purpose of the APA's 30-day effective date provision is to give
affected parties time to adjust their behavior before the final rule
takes effect. The LMAPCD, to which this rulemaking applies, indicated
in a comment letter to EPA that it did not object to a SIP submittal
deadline of January 1, 2011. Both the LMAPCD and the public have been
aware that we would take this approach to this rule for some time, that
is, that we would establish a SIP submittal deadline on a date to which
the state does not object, potentially as early as December 22, 2010,
so that we could make a finding of failure to submit and promulgate a
FIP immediately thereafter, and potentially as early as December 23,
2010, in order that the FIP could be in effect on or as soon as
possible after the January 2, 2011, date that PSD begins to apply to
GHG-emitting sources. We described this approach in the proposed SIP
call that was signed and made available to the public on August 12,
2010, even before its September 2, 2010 publication date in the Federal
Register. Moreover, the public was afforded the opportunity to comment
on this approach in the SIP call proposal. See 75 FR 53892, 53896.
    In addition, this rule is not a major rule under the Congressional
Review Act (CRA). Thus, the 60-day delay in effective date required for
major rules under the CRA does not apply.

IV. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedure Act (APA)

    This is a final EPA action but is not subject to notice-and-comment
requirements of the Administrative Procedure Act (APA), 5 U.S.C.
553(b). EPA believes that because of the limited time provided to make
findings of failure to submit regarding SIP submissions, Congress did
not intend such findings to be subject to notice-and-comment
rulemaking.
    However, to the extent such findings are subject to notice-and-
comment rulemaking, EPA invokes the good cause exception pursuant to
the APA, 5 U.S.C. 553(b)(3)(B), which excuses the notice-and-comment
obligation ``when the agency for good cause finds (and incorporates the
finding and a brief statement of reasons therefor 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 (D.C. 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.
    Here, notice and comment are unnecessary because no EPA judgment is
involved in making a nonsubstantive finding of failure to submit
elements of SIP submissions required by the CAA. Furthermore, providing
notice and comment would be impracticable because of the limited time
provided under the statute for making such determinations. Finally,
notice and comment would be contrary to the public interest because it
would divert agency resources from the critical substantive review of
complete SIPs. See 58 FR 51270, 51272, n.17 (October 1, 1993); 59 FR
39832, 39853 (August 4, 1994). In addition, in this case, notice and
comment would be impracticable and contrary to the public interest for
the same reasons, discussed earlier in this preamble, why a 30-day
effective date would be impracticable and contrary to the public
interest.

B. Executive Order 12866--Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993).
This action issues a finding that the LMAPCD has failed to submit a
corrective SIP by the deadline established in EPA's recently
promulgated SIP call for Jefferson County, Kentucky. This type of
action is exempt from review under EO 12866.

C. Paperwork Reduction Act

    This action does not impose any new information collection burden.
However, OMB has previously approved the information collection
requirements contained in the existing regulations for PSD (see, e.g.,
40 CFR 52.21) and title V (see 40 CFR parts 70 and 71) under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2060-0003 and OMB control number 2060-
0336 respectively. The OMB control numbers for EPA's regulations in 40
CFR are listed in 40 CFR part 9.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act (APA) or any other statute. This rule is not subject to
the notice-and-comment requirement of the APA, because the Agency has
invoked the ``good cause'' exemption under 5 U.S.C. 553(b). Thus, this
rule is not subject to the RFA.

E. 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
sector. This action imposes no enforceable duty on any state, local, or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203
of the UMRA because it contains no regulatory

requirements that might significantly or uniquely affect small
governments. This action does not impose any new obligations or
enforceable duties on any small governments.

F. Executive Order 13132--Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action merely prescribes EPA's
action for states that do not meet their existing obligation for PSD
SIP submittal. Thus, Executive Order 13132 does not apply to this
action.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicited comment on this action, as part
of the FIP proposal, from state and local officials.

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

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). In this action,
EPA is not addressing any tribal implementation plans. This action is
limited to states that do not meet their existing obligation for PSD
SIP submittal. Thus, Executive Order 13175 does not apply to this
action.
    Although Executive Order 13175 does not apply to this final rule,
EPA specifically solicited additional comment on the proposal for this
action from tribal officials and we received one comment from a tribal
agency. Additionally, EPA participated in a conference call on July 29,
2010, with the National Tribal Air Association (NTAA).

H. Executive Order 13045--Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it merely prescribes EPA's action for states that do not
meet their existing obligation for PSD SIP submittal.

I. 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 a
significant regulatory action under Executive Order 12866. This action
merely prescribes EPA's action for states that do not meet their
existing obligation for PSD SIP submittal.

J. 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.

K. 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 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. This rule merely prescribes EPA's action for states that
do not meet their existing obligation for PSD SIP submittal.

L. 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 804 exempts from section 801 the following types
of rules: (1) Rules of particular applicability; (2) rules relating to
agency management or personnel; and (3) rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties. 5 U.S. 804(3). EPA is not required
to submit a rule report regarding this action under section 801 because
this is a rule of agency organization, procedure, or practice that does
not substantially affect the rights or obligations of non-agency
parties.

V. 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 nationally applicable under CAA section 307(b)(1). It
is merely the next step in the suite of rules addressing inadequacies
in SIPs related to 13 states' failure to apply PSD to GHG-emitting
sources such as the SIP call, the finding of failure to submit issued
on December 29, 2010, and the FIP issued on December 30, 2010. In
particular, this rule simply follows up on the finding of failure to
submit issued on December 29, 2010, which affected seven states that
chose the earliest possible deadline, and takes the next step to make
an identical finding for Jefferson County, Kentucky, now that this
area, too, has missed its SIP submittal deadline. The circumstances
that have led to this rulemaking are national in scope and are
substantially the same for the LMAPCD as they were for each of the
seven affected states in the earlier finding of failure to submit

issued on December 29, 2010. They include EPA's promulgation of
nationally applicable GHG requirements that, in conjunction with the
operation of the CAA PSD provisions, have resulted in GHG-emitting
sources' becoming subject to PSD; as well as EPA's finding of
substantial SIP inadequacy, imposition of a SIP call, and establishment
of deadlines for SIP submittal. Moreover, in this rule, EPA is applying
the same uniform principles for promulgating the finding of failure to
submit in Jefferson County, Kentucky, as it did for each of the seven
earlier-affected states. The FIP for Jefferson County, Kentucky,
accompanying this rule has substantially the same, if not identical,
terms as the FIP for each earlier-affected state in the December 30,
2010, rule. This rulemaking action is supported by the same single
administrative record as the earlier December 29, 2010, finding of
failure to submit rule and does not involve factual questions unique to
the LMAPCD. In addition, as stated earlier in this preamble, this rule
is part of a single approach to correcting certain inadequacies in SIPs
in multiple states across the country and in several judicial circuits.
    For similar reasons, this rule is based on determinations of
nationwide scope or effect. For the LMAPCD, EPA is determining that it
is appropriate to make this finding of failure to submit effective
immediately in order to promulgate the FIP immediately and to apply the
FIP to GHG-emitting sources, but not other sources, in the same way it
made the same determination for the seven other states in the December
29, 2010, finding of failure to submit. These determinations are the
same for each of the states. The provisions of this finding of failure
to submit are also substantially the same, if not identical, to those
for the seven earlier-affected states. Moreover, EPA is making this
finding and promulgating this action within the context of nationwide
rulemakings and interpretation of the applicable CAA provisions, as
noted earlier in this preamble.
    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 March 15,
2011. Any such judicial review is limited to only those objections that
were raised with reasonable specificity in timely comments. Under
section 307(b)(2) of the Act, the requirements of this final action may
not be challenged later in civil or criminal proceedings brought by us
to enforce these requirements.

VI. Statutory Authority

    The statutory authority for this action is provided by sections
101, 111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401,
7411, 7414, 7416, and 7601).

List of Subjects in 40 CFR Part 52

    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: January 11, 2011.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2011-769 Filed 1-13-11; 8:45 am]
BILLING CODE 6560-50-P