# Record and brief — Texas v. Envtl. Prot. Agency

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0899%3A0

## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 2013
- **Citation:** 571 U.S. 951

## Text

Ny) SUPREME COURT

“ea? OF THE UNITED STATES

No. 12-1269
Vide 12-1146, 12-
1248, 12-1254,
12-1268, 12-1272
Title: Texas, et al., Petitioners
V.
Environmental Protection Agency, et al.
Docketed: April 23, 2013
Linked with 12A884
Lower Ct United States Court of Appeals for the District of Columbia Circuit
Case Nos.: (10-1092, et al.)
Decision Date: June 26, 2012
Rehearing
Denied: December 20, 2012
Questions
Presented
~~~Date~~~ ~~~~~~~Proceedings and Orders

Mar 8 2013 Application (12A884) to extend the time to file a petition for a wnt of certioran
from March 20, 2013 to April 19, 2013, submitted to The Chief Justice.

Mar 12 2013 Application (12A884) granted by The Chief Justice extending ihe time to file
until April 19, 2013.

Mar 18 2013 Application (12A905) to extend the time to file a petition for a wnt of certioran
from March 20, 2013 to April 19, 2013, submitted to The Chief Justice.

Mar 19 2013 Application (12A905) granted by The Chief Justice extending the time to file
until April 19, 2013.

Apr 19 2013 Petition for a writ of certioran filed. (Response due May 23, 2013)
Apr 19 2013 Appendix of Texas, et al. filed. (Volumes | & II)

May 8 2013 Consent to the filing of amicus curiae bnefs, in support of either party or of
neither party, received from counsel for Texas, and eight other states.

May 13 2013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counse! for petitioners Southeastern Legal
Foundation, Inc., et al.

May 14 2013 Consent to the filing of amicus cunae bnefs, in support of either party or of
neither party prty, received from counsel for the Federal Respondent.

May 14 2013 Letter of respondent National Environmental Development Association's Clean
Air Project in support of the petitioner received .

May 15 2013 Order extending time to file response to petition to and including June 21,
2013, for all respondents.

May 17 2013 Consent to the filing of amicus curiae briefs, in support of either party, or of

neither party, received from counsel for the State of Indiana.

May 23 2013 Bnef amici curiae of Kansas, Montana, and West Virginia filed.
May 23 2013 Bnef amici curiae of Scientists filed. VIDED

Jun 6 2013
Jun 7 2013

Jun 7 2013

Jul 12013

Jul 8 2013

Jul 22 2013

Jul 22 2013
Jul 22 2013
Aug 7 2013

Order further extending time to file response to petition to and including July
22, 2013, for all respondents.

Application (12A1181) to file consolidated brief in opposition in excess of word
limits, submitted to The Chief Justice.

Application (12A1181) to file consolidated brief in opposition in excess of word
limits granted by The Chief Justice. The consolidated brief in opposition may
not exceed 12,000 words.

Application (13A35) to file consolidated bref in opposition in excess of word
limits, submitted to The Chief Justice.

Application (13A35) to file consolidated brief in opposition in excess of word
limits granted by The Chief Justice. The consolidated brief in opposition may
not exceed 11,000 words.

Brief of respondents Environmental Protection Agency, et al. in opposition filed
VIDED.

Brief of Environmental Organization respondents in opposition filed. VIDED.
Bnef of respondents New York, et al. in opposition filed. VIDED
DISTRIBUTED for Conference of September 30, 2013.

Sep 13 2013 Reply of petitioner Texas, et al. filed. (Distributed)

Oct 7 2013
Oct 15 2013

Oct 22 2013
Oct 24 2013

Oct 29 2013

Nov 1 2013

Nov 1 2013

Nov 1 2013

Nov 1 2013

DISTRIBUTED for Conference of October 11, 2013.

Petition GRANTED limited to the following Question: Whether EPA permissibly
determined that its regulation of greenhouse gas emissions from new motor
vehicles triggered permitting requirements under the Clean Air Act for
stationary sources that emit greenhouse gases. The cases are consolidated
and a total of one hour is allotted for oral argument. VIDED.

Briefing proposal of the parties. VIDED

Letter from Coalition for Responsible Regulation, |nc., et al. regarding bnefing
proposal. VIDED.

Upon consideration of the letter of October 22, 2013, from counsel for
petitioners in No. 12-1248 on behalf of the parties, the briefing proposal set out
in the letter is adopted with the exception that the bnefs of petitioners shall not
exceed 45,000 words in aggregate. The briefs of respondents in support of
petitioners shall not exceed 6,000 words each. The brief of the Solicitor
General shall not exceed 15,000 words. The briefs of other respondents shall
not exceed 10,000 words each. Reply briefs shall not exceed 18,000 words in
aggregaie. VIDED

Consent from petitioner Utility Air Regulatory Group to the filing of amicus
curiae bnefs in support of either party or neither party. VIDED.

The time to file joint appendix, petitioners’ briefs on the merits, and briefs of
respondents in support of petitioners is extended to and including December 9,
2013. VIDED

The time to file respondents’ briefs on the merits is extended to and including
January 21, 2014. VIDED

Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for the United States Federal

Environmental Protection Agency, et al. VIDED.

Nov 7 2013 Consent to the filing of amicus curiae bnefs, in support of either party or of
neither party, received from counsel for the petitioner Texas, et al. VIDED.

Nov 82013 Consent to the filing of amicus curiae briefs, in support of either party or of

neither party, received from counsel for Southeastem Legal Foundation, Inc., et

al. VIDED.

Nov 8 2013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for Coalition for Responsible Regulation,
Inc., et al. VIDED.

Nov 12 2013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for American Chemistry Council, et al
VIDED.

Nov 12 2013 Consent to the filing of amicus cunae briefs, in support of either party or of
neither party, received from counsel for New York, California, et al. VIDED.

Nov 12 2013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for Environmental Organizations, Center
for Biological Diversitiy, et al. VIDED.

Nov 12 2013 Letter received from counsel for the Automobile Respondents. VIDED.

Nov 12 2013 Letter received from counsel for the Automobile Respondents. VIDED.

Nov 19 2013 Consent to the filing of amicus curiae bnefs, in support of either party or of
neither party, received from counsel for Energy-intensive Manufacturers
Working Group on Greenhouse Gas Regulation, et al. VIDED.

Nov 21 2013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for The Chamber of Commerce of the
United States of America, et al. VIDED.

Nov 25 2013 SET FOR ARGUMENT ON Monday, February 24, 2014

Dec 92013 Consent to the filing of amicus curiae briefs, in support of either party or of
neither party, received from counsel for the National Mining Association.
VIDED.

Dec 92013 Consent to the filing of amicus cunae briefs, in support of either party or of
neither party, received from counsel for the National Mining Association.
VIDED.

Dec 92013 Bnef of respondents Coalition for Responsible Regulation, Inc., et al. in support

of petitioners filed. VIDED.
Dec 92013 Brief of petitioners American Chemistry Council, et al. filed. VIDED.

Dec 92013 Brief of petitioners Chamber of Commerce of the United States of America, et
al. filed. VIDED.

Dec 92013 Brief of petitioners Southeastem Legal Foundation, Inc., et al. filed. VIDED.

Dec 92013 Brief of petitioner Energy-intensive Manufacturers Working Group on
Greenhouse Gas Regulation, et al. filed. VIDED.

Dec 92013 Bnef of petitioners Texas, et al. filed. VIDED.

Dec 92013 Joint appendix filed (5 volumes). (Statement of costs filed.) VIDED.
Dec 92013 Brief of petitioner Utility Air Regulatory Group filed. VIDED.

Dec 12 2013 Brief amici curiae of Pacific Legal Foundation, et al. filed. VIDED.
Dec 13 2013 Record received from U.S.C.A. DC Circuit. The record is electronic.
Dec 16 2013 Brief amici curiae of States of Kansas, et al. filed. VIDED.

Dec 16 2013 Brief amicus curiae of Peabody Energy Corporation filed. VIDED.

Dec 16 2013 Bnef amici cunae of Political Economists Henry N. Butler, et al. filed. VIDED.
Dec 16 2013 Brief amici curiae of Economists Thomas C. Schelling, et al. filed. VIDED.
Dec 16 2013 Brief amicus curiae of Committee for a Constructive Tomorrow filed. VIDED
Dec 16 2013 Brief amicus curiae of American Civil Rights Union filed. VIDED.

Dec 16 2013 Brief amici curiae of Texas Oil & Gas Association, et al. filed. VIDED.

Dec 16 2013 Brief amicus curiae of Senator Mitch McConnell and Other Members of the
United States Congress filed. VIDED.

Dec 16 2013 Bnef amicus curiae of Mountain States Lega! Foundation filed. VIDED.
Dec 16 2013 Brief amici curiae of Five U.S. Senators filed. VIDED.
Dec 16 2013 Bnef amicus curiae of Center for Constitutional Jurisprudence filed. VIDED.

Dec 16 2013 Bnef amici cunae of State and Local Chambers of Commerce, and Other
Business Associations filed. VIDED.

Dec 16 2013 Brief amici curiae of Administrative Law Professors, et al. filed. VIDED.
(Distnbuted)

Dec 16 2013 Bnef amicus curiae of American Road & Transportation Builders Association in
support of neither party filed. VIDED. (Distnbuted)

Dec 16 2013 Brief amici curiae of Scientists and Economists filed. VIDED. (Distributed)

Dec 20 2013 CIRCULATED.

Jan 62014 Motion for divided argument and enlargement of time for oral argument filed by
petitioners. VIDED.

Jan 21 2014 Brief of respondent Environmental Protection Agency filed. VIDED.
(Distributed)

Jan 21 2014 Brief of respondents Environmental Organization respondents filed. VIDED.
(Distributed)

Jan 21 2014 Bref of respondents New York, et al. filed. VIDED. (Distributed)

Jan 27 2014 Motion for divided argument filed by petitioners GRANTED. and the time is
divided as follows: 30 minutes for private party petitioners, 15 minutes for state
petitioners, and 45 minutes for respondents.

Jan 27 2014 Brief amici curiae of South Coast Air Quality Management District, et al. filed
VIDED. (Distributed)

Jan 27 2014 Brief amicus curiae of Institute for Policy Integrity at New York University
School of Law filed. VIDED. (Distributed)

Jan 28 2014 Brief amicus curiae of Calpine Corporation filed. VIDED. (Distributed)

Jan 28 2014 Brief amicus curiae of American Thoracic Society filed. VIDED. (Distributed)

Jan 28 2014 Brief amicus curiae of Constitutional Accountability Center filed. VIDED.
(Distributed)

Feb 13 2014 Reply of respondents Coalition for Responsible Regulation, Inc., et al. in
support of petitioners filed. VIDED. (Distributed)

Feb 14 2014 Reply of petitioners in Nos. 12-1248, 12-1254, 12-1268, and 2-1272 filed.
VIDED. (Distributed)

Feb 14 2014 Reply of petitioners Texas, et al. filed. VIDED. (Distributed)

Feb 14 2014 Reply of petitioner Utility Air Regulatory Group filed. VIDED. (Distributed)

Feb 24 2014 Argued. For private petitioners: Peter Keisler, Washington, D. C. For state
petitioners: Jonathan F. Mitchell, Solicitor General, Austin, Tex. For

respondents: Donald B. Ver»nilli, Jr., Solicitor General, Department of Justice,
Washington, D. C.

PETITION
FOR

WRIT OF
CERTIORARI

RECORD [—“Scoreme Court, US|
AND —

BRIEFS APR 19 2013

12-1269"

In the Supreme Court of the Anited States

STATE OF TEXAS, ET AL., PETITIONERS
v~.
U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GREG ABBOTT JONATHAN F. MITCHELL
Attorney General of Texas Solicitor General
Counsel of Record

DANIEL T. HODGE
First Assistant MICHAEL P. MURPHY

Attorney General JAMES P. SULLIVAN

Assistant Solicitors General

J. REED CLAY, JR.
Senior Counsel to the OFFICE OF THE

Attorney General ATTORNEY GENERAL

P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
{additional counsel jonathan. mitchell@
listed on inside cover] texasattorneygeneral.gov
(512) 936-1700

LUTHER STRANGE, Attorney General of Alabama
PAMELA JO BONDI, Attorney General of Florida
SAMUEL S. OLENS, Attorney General of Georgia
GREGORY F. ZOELLER, Attorney General of Indiana
JAMES D. “BUDDY” CALDWELL, Attorney General of Louisiana
BILL SCHUETTE, Attorney General of Michigan

JON BRUNING, Attorney General of Nebraska

WAYNE STENEHJEM, Attorney General of North Dakota
E. SCOTT PRUITT, Attorney General of Oklahoma

ALAN WILSON, Attorney General of South Carolina
MARTY J. JACKLEY, Attorney General of South Dakota

HERMAN ROBINSON, Executive Counsel of the Louisiana
Department of Environmental Quality

QUESTIONS PRESENTED

The Clean Air Act compels every stationary
source that emits “one hundred tons per year or more
of any air pollutant” to obtain an operating permit,
and also requires a permit to build or modify any
stationary source that emits “two hundred and fifty
tons per year or more of any air pollutant.” See 42
U.S.C. §§ 7475(a)(1), 7479(1), 7602G), 7661la(a).
After Massachusetts v. EPA, 549 U.S. 497 (2007),
held that carbon dioxide and other greenhouse gases
are air pollutants under the Act, EPA sought to
regulate greenhouse-gas emissions from stationary
sources. EPA realized that to do so would be absurd
if it adhered to the text of the Act, given that millions
of buildings (including churches and schools) emit
more than 100 or 250 tons per year of carbon dioxide.
To enable its desired regulatory expansion, EPA
promulgated a “Tailoring Rule” that discards the
Act’s numerical thresholds and creates a novel
permitting regime exclusively for greenhouse gases.
The questions presented are:

1. (a) Whether EPA’s Tailoring Rule violates the
Act by replacing Congress’s unambiguous numerical
permitting thresholds with criteria of EPA’s own
choosing. (b) Whether the D.C. Circuit improperly
ducked this question on Article III standing grounds.

2. Whether Congress authorized EPA to regulate
greenhouse-gas emissions from stationary sources,
given that the Act imposes permitting thresholds
that are absurdly low if applied to carbon dioxide.

3. Whether Massachusetts v. EPA should be
reconsidered or overruled in light of the absurd
permitting burdens that follow from treating carbon
dioxide as an air pollutant under the Act.

(D)

Il

PARTIES TO THE PROCEEDING

The court of appeals issued a single judgment on
four consolidated causes, disposing of numerous
petitions for review of various EPA actions.
Petitioners in this Court, petitioners below, are the
States of Texas, Alabama, Florida, Georgia, Indiana,
Louisiana, Michigan, Nebraska, North Dakota,
Oklahoma, South Carolina, and South Dakota, and
the Louisiana Department of Environmental
Quality.

Respondents in this Court, respondents below,
are the U.S. Environmental] Protection Agency and
Robert Perciasepe, Acting Administrator of the U.S.
Environmental Protection Agency.

The following parties are considered respondents
under Supreme Court Rule 12.6, and are grouped
according to their respective positions in the court
below:

Petitioners

Alliance for Natural Climate Change Science and
William Orr; Alpha Natural Resources, Inc.;
American Chemistry Council; American Farm
Bureau Federation; American Forest & Paper
Association, Inc.; American Frozen Food Institute;
American Fuel and Petrochemical Manufacturers;
American Iron and Steel Institute; American
Petroleum Institute; U.S. Representative Michele
Bachmann; Haley Barbour, Governor of Mississippi;
U.S. Representative Marsha Blackburn; U.S.
Representative Kevin Brady; Brick Industry
Association; U.S. Representative Paul Broun; US.
Representative Dan Burton; Center for Biological
Diversity; Chamber of Commerce of the United

Iil

States of America; Clean Air Implementation
Project; Coalition for Responsible Regulation, Inc.;
Collins Industries, Inc.; Collins Trucking Company,
Inc.; Competitive Enterprise Institute; Corn Refiners
Association; U.S. Representative Nathan Deal;
Energy-Intensive Manufacturers’ Working Group on
Greenhouse Gas Regulation; Freedomworks; Georgia
Agribusiness Council, Inc.; Georgia Coalition for
Sound Environmental Policy, Inc.; Georgia Motor
Trucking Association, Inc.; Gerdau Ameristeel
Corporation; U.S. Representative Phil Gingrey; Glass
Association of North America; Glass Packaging
Institute; Great Northern Project Development, L.P.;
Independent Petroleum Association of America;
Indiana Cast Metals Association; Industrial Minerals
Association-North America; J&M Tank Lines, Inc.;
Kennesaw Transportation, Inc.; U.S. Representative
Steve King; U.S. Representative Jack Kingston;
Landmark Legal Foundation; Langboard, Inc.-MDF;
Langboard, Inc.-OSB; Langdale Chevrolet-Pontiac,
Inc.; Langdale Company; Langdale Farms, LLC;
Langdale Ford Company; Langdale Forest Products
Company; Langdale Fuel Company; Mark R. Levin;
U.S. Representative John Linder; Massey Energy
Company; Michigan Manufacturers Association;
Mississippi Manufacturers Association; Missouri
Joint Municipal Electric Utility Commission;
National Association of Home Builders; National
Association of Manufacturers; National Cattlemen’s
Beef Association; National Environmental
Development Association’s Clean Air Project;
National Federation of Independent Businesses;
National Mining Association; National Oilseed
Processors Association; National Petrochemical &
Refiners Association; North American Die Casting

IV

Association; Ohio Coal Association; Pacific Legal
Foundation; Peabody Energy Company; Portland
Cement Association; U.S. Representative Tom Price;
U.S. Representative Dana Rohrabacher; Rosebud
Mining Company; Science and Environmental Policy
Project; U.S. Representative John Shadegg; U.S.
Representative John Shimkus; South Carolina
Public Service Authority; Southeast Trailer Mart
Inc.; Southeastern Legal Foundation, Inc.; Specialty
Steel Industry of North America; Tennessee
Chamber of Commerce and Industry; Texas
Agriculture Commission; Texas Attorney General
Greg Abbott; Texas Commission on Environmental
Quality; Texas Department of Agriculture; Texas
General Land Office; Texas Governor Rick Perry;
Texas Public Utilities Commission; Texas Public
Utility Commission Chairman Barry Smitherman;
Texas Railroad Commission; Utility Air Regulatory
Group; Commonwealth of Virginia ex rel. Attorney
General Kenneth T. Cuccinelli; West Virginia
Manufacturers Association; Western States
Petroleum Association; U.S. Representative Lynn
Westmoreland; Wisconsin Manufacturers and
Commerce;

Respondent
National Highway Traffic Safety Administration;
Intervenors for Petitioners

State of Alaska; American Frozen Food Institute;
American Fuel & Petrochemical Manufacturers;
American Petroleum Institute; Arkansas State
Chamber of Commerce; Associated Industries of
Arkansas; Haley Barbour, Governor for the State of
Mississippi; Chamber of Commerce of the United

V

States of America; Colorado Association of Commerce
& Industry; Corn Refiners Association; Glass
Association of North America; Glass Packaging
Institute; Idaho Association of Commerce and
Industry; Independent Petroleum Association of
America; Indiana Cast Metals Association; Kansas
Chamber of Commerce and Industry; State of
Kentucky; Langboard, Inc.-MDF; Langboard, Inc.-
OSB; Langdale Chevrolet-Pontiac, Inc.; Langdale
Farms, LLC; Langdale Ford Company; Langdale
Fuel Company; Louisiana Oil and Gas Association;
Michigan Manufacturers Association; Mississippi
Manufacturers Association; National Association of
Home Builders; National Association of
Manufacturers; National Electrical Manufacturers
Association; National Oilseed Processors Association;
Nebraska Chamber of Commerce and Industry;
North American Die Casting Association; Ohio
Manufacturers Association; Pennsylvania
Manufacturers Association; Portland Cement
Association; Steel Manufacturers Association;
Tennessee Chamber of Commerce and Industry;
State of Utah; Virginia Manufacturers Association;
West Virginia Manufacturers Association; Western
States Petroleum Association; Wisconsin
Manufacturers and Commerce;

Intervenors for Respondents

Alliance of Automobile Manufacturers; American
Farm Bureau Federation; State of Arizona; Brick
Industry Association; State of California; Center for
Biological Diversity; State of Connecticut;
Conservation Law Foundation; State of Delaware;
Environmental Defense Fund; Georgia ForestWatch;
Global Automakers; State of LIllinois; Indiana

VI

Wildlife Federation; State of Iowa; State of Maine;
State of Maryland; Commonwealth of
Massachusetts; Michigan Environmental Council;
State of Minnesota; National Environmental
Development Association's Clean Air Project;
National Mining Association; National Wildlife
Federation; Natural Resources Council of Maine;
Natural Resources Defense Council; State of New
Hampshire; State of New Mexico; State of New York;
City of New York; State of North Carolina; Ohio
Environmental Council; State of Oregon; Peabody
Energy Company; State of Rhode Island; Sierra
Club; South Coast Air Quality Management District;
Utility Air Regulatory Group; State of Vermont;
State of Washington; Wetlands Watch; Wild
Virginia.

Vil
TABLE OF CONTENTS

Page
I TTC ETT A TTR AT TEI TTT 2
PETERS A et ae eee eT ONT ET 2
Constitutional Provision, Statutes, and
RES ESE AE ee aoe 2
EER at an Sr See A Saeeaal
I. EPA regulates mobile-source
greenhouse-gas emissions after
II We CUI ciiccnnicinciniedcniicvendenteantate 3
Il. EPA also decides to _ regulate
greenhouse-gas emissions from
i clan 5

II].EPA issues the “Tailoring Rule” to avoid
applying the statutory permitting
thresholds to greenhouse-gas emissions..... 8

IV.The D.C. Circuit rejects all challenges to
EPA’s stationary-source greenhouse-gas
RE SRC aes ac ae NERO 10

V. The D.C. Circuit denies petitioners’
request for rehearing en banc, over
I cisiscricintscinsichdihtidaleamadidancaiabatiiachitaeradiaaseliatuan ites 18

Reasons for Granting the Petition.......................... 18

I. This Court should grant certiorari to
resolve the legality of EPA’s Tailoring
SUE ievhiashaiinnicmichiobiighadiasnabasenadaiieiiammeniibannides 20

Vill

Il. This Court should grant certiorari to
decide whether Congress has delegated
to EPA the authority to regulate
greenhouse-gas emissions from
stationary sources, given the absurdly
low permitting thresholds that the
Clean Air Act would apply to carbon
ESE N tare PE ORE

I1l.This Court should grant certiorari to
reconsider or overrule Massachusetts’s
holding in light of the absurdity of
applying the _ statutory permitting
requirements to carbon dioxide
IT ciiiisiadnisesominiaindiasinabinannieaniniiaaitieinnniin

SE TE ICE OR ATE TTS OI TRO OO

Appendix A — Order of U.S. Court of Appeals
for the District of Columbia Circuit
Dismissing Petitions for Review of Timing
and Tailoring Rules and Denying Other
I I sc sieahtisiintinneiindaaintiinnnpbenion

Appendix C — U.S. Environmental] Protection
Agency, Prevention of Significant
Deterioration and Title V Greenhouse Gas
Tailoring Rule, 75 Fed. Reg. 31,514

28

(June 3, 2010) (“Tailoring Rule’)................ 103a

Appendix D — Order of U.S. Court of Appeals
for the District of Columbia Circuit

Denying Panel Rehearing........................... 525a

IX

Appendix E — Order of U.S. Court of Appeals
for the District of Columbia Circuit
Denying Petitions for Rehearing En Banc
of Chamber of Commerce of the United
States of America and National Association
of Manufacturers, et al. ..........................0... 530a

Appendix F — Order of U.S. Court of Appeals
for the District of Columbia Circuit
Denying Petition for Rehearing En Banc of

Pacific Lege FOURGRGIOR ........ccccccscccsccecesece 589a
Appendix G — Federal Statutes...................... 59la
Appendix H — Federal Regulations................ 620a

TABLE OF AUTHORITIES
Cases:

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) .........00.000.... 23
Envtl. Def. Fund v. EPA,

210 F.3d 396 (D.C. Cir. 2000).............00..... 16
FDA v. Brown & Williamson Tobacco Corp.,

2s S.C EEee 1, 29, 30
Gonzales v. Oregon, 546 U.S. 243 (2006) ......... l

Hamdan v. Rumsfeld, 548 U.S. 557 (2006)...... 2
J.W. Hampton, Jr. & Co. v. United States,

I ilies 21
Lujan v. Defenders of Wildlife,
gt i | eee 22,27

Massachusetts v. EPA,
tk Sg. —___, SRE v Dn ann passim

X

MCI Telecomms. Corp. v. AT&T Co.,
es: SI cccicciccntitintaeiemenscnemsanneiie 21

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co.,

ey ee SI seiiiiistiiinidineosencpnnsmsninicncionnes 10
Payne v. Tennessee, 501 U.S. 808 (1991)........ 32
United States v. Van Smith,

530 F.3d 967 (D.C. Cir. 2008).................... 16
Vasquez v. Hillery, 474 U.S. 254 (1986)......... 32
Whitman v. Am. Trucking Ass'ns,

LS eee a 21
Youngstown Sheet & Tube Co. v. Sawyer,

Se dctetccmriniscirnencnciviesiiiinnnina 1

Constitution, Statutes, and Rules:
Sy I A I il rcs cciiciiniielionsaiauineieneae 1
oF Ge Se Se UR eS en 2
a I a icin dtccehaepiebiastenetiilamabeiniad 2
I ci een passim
ee ee PD ccniccticesenvictncscctstnnincunis 12
Se ree Oh PIED Svccccccsccccesnssincsensssevecess 5
eS Oe PE ictstttccsiccercesnscnstscentesiannats 5
OG vic scctivececscncvsivsninveneneeceness 5, 12
| LE ae on en a 5
ee ee SE initssccistnessnninininmenvnniesinatatenin 12
ee ae I iiiciicecienitsicnninevstienntibicnasdiite I,5
Be le Se PE vihtntctenencsnsecasctcnnscsnends 6, 12

I, i aincecesitccxeesenenctriteiensseniortinssnionios 5

A ta PD ccerctenetincncesscnnisnnins I, 6, 12, 13
Se a ae ED iiciiciteserenitesiininniciiciennmiineinies 3, 14
Oe Be I iccctictickcncinnninccceccinnanmnnisinniars 4, 29
ee ee SE diicictnenctsnsaveiduninciamacamacieiehi I, 6
Oe As OF PID vercesrcsctnctencannnicsnnnnsenes 19, 27
I Oe I i ting’ the
pollutants would also allow for more appropriate
technology review.

After considering these comments, and taking into
account other related actions that have occurred
since proposal, we have determined that PSD and
title V permitting program requirements will apply,
as proposed, to the “single air pollutant that is
comprised of the group of six GHGs.” 74 FR 55329,
col. 1. We believe that this approach is both
compelled by the statute and reflects the preferable
policy approach.

As more fully discussed elsewhere in this
rulemaking, the PSD requirements apply to a “major
emitting facility” that undertakes construction or
“modification.” CAA sections 165(a), 169 (2)(C). The

16la

term “major emitting facility” is defined as, in
general, a source that emits 100 or 250 tons of “any
air pollutant,” CAA section 169(1), and, similarly, the
term “modification” is defined as a physical or
operational change that results in the increased or
new emissions of “any air pollutant.” CAA sections
169(2)(C), 111(a)(4). Through regulation, we have
interpreted the term “any air pollutant,” as found in
both the terms “major emitting facility” and
“modification,” more narrowly to mean any
“regulated NSR pollutant,” and we further define
this term to include any pollutant that is “subject to
regulation under the Act.” 40 CFR 52.21(b)(50)(iv),
52.21.(b)(2).'4

Similarly, as discussed elsewhere, the title V
requirements apply to a “major source,” which is
defined, in general, as any source that emits at least
100 tpy of “any air pollutant.” CAA sections 502(a),
501(2)(B), 302G). EPA has interpreted the term “any
air pollutant” narrowly so that applies only with
respect to air pollutants that are subject to
regulation under the CAA. Memorandum from Lydia
N. Wegman, Deputy Director, Office of Air Quality
Planning and Standards, U.S. EPA, “Definition of
Regulated Air Pollutant for Purposes of Title V”
(Apr. 26, 1993).

Based on these provisions, tne key issue for
present purposes in determining whether a source is
subject to PSD (because it qualifies as a major

14 By the same token, CAA section 165(a)(4) requires that a
source subject to PSD impose best available control technology
for “each pollutant subject to regulation under this chapter”
that the source emits.

162a

emitting facility that undertakes construction or
modification) or title V is whether the pollutant or
pollutants that the source emits comprise the “air
pollutant” that is “subject to regulation” under the
Act.

The phrase “subject to regulation under the Act,”
by its terms, identifies the air pollutant that is
subject to PSD and title V as the same air pollutant
that is identified in the regulatory action under
another provision of the Act. The term is a simple
cross-reference. It carries no implication that EPA, in
identifying the pollutant to which PSD or title V
apply, may redefine the pollutant that is regulated
elsewhere in the Act. Whatever the pollutant is that
is regulated elsewhere, it is that pollutant to which
PSD and title V apply.

Since the time of our proposal, we have finalized
both the contribution finding and the LDVK for
GHGs. The final LDVR for GHGs specifies, in the
rule’s applicability provisions, the air pollutant
subject to control as the aggregate group of the six ~
GHGs, including COe, CH4, N2O, SFs, HFCs, and
PFCs.'5 Because it is this pollutant that is regulated
under the LDVR, it is this pollutant to which PSD
and title V apply. Specifically, the applicability
provision in the LDVR provides a clear reference to
the definition of the single pollutant comprised of the
aggregate group of the six well-mixed GHGs, which
makes clear PSD and title V applicability depends on
the same sum-of-six GHG construct. We must follow
this construct of the aggregate group of the six gases

‘6 The applicability provision of the LDVR is found in 40 CFR
86.1818~-12(a).

163a

and do not have discretion to interpret the GHG “air

pollutant” differently for the purposes of PSD or title
V.

This construct of the pollutant as the aggregate
group of the six gases is also consistent with the
definition of the air pollutant in the final
contribution finding for GHGs [see 74 FR 66496,
66499, 66536—7 (December 15, 2009)]. There, the
Administrator defined the air pollutant as the
“aggregate group of the same six * * * greenhouse
gases,” (74 FR 66536), and these well-mixed GHGs
are defined to include CO2, CHs, N2O, SFs, HFCs,
and PFCs.

Moreover, even if we had discretion to identify the
GHGs air pollutant differently in the permitting
programs than in the LDVR, we believe it is
reasonable to identify the GHGs air pollutant
through the sum-of-six construct for the same
reasons why we adopted that definition in the
contribution finding and for additional reasons noted
below specific to the permit programs. The term “air
pollutant” is defined under CAA section 302(g) as
“any air pollution agent or combination of such
agents, including any physical, chemical, biological,
radioactive * * * substance or matter which is
emitted into or otherwise enters the ambient air.”
Under this definition, EPA has broad discretion to
identify an air pollutant, including, as appropriate,
treating a combination of air pollutant agents as a
single air pollutant. Here, we think that the six well-
mixed gases are appropriately combined into a single
air pollutant because, as noted in the contribution
findings, they share several important attributes:
Each of the six gases:

164a

* Is directly emitted (and is not formed by
secondary processes in the atmosphere);

* Is long-lived in the atmosphere after it is
emitted;

- Is sufficiently long-lived that it becomes “well-
mixed,” which means that its concentration is
essentially uniform in the atmosphere (as opposed to
having significant local/regional variation); and

* Has well understood atmospheric properties
(e.g., radiative forcing).

See 74 FR 66516-66518.

In addition, treating the six GHGs as a single air
pollutant is consistent with the actions of
international scientific bodies. For example, the
Intergovernmental Panel on Climate Change (IPCC)
considers in various reports how the six gases drive
human-induced climate change and how that affects
health, society, and the environment. Similarly, the
United Nations Framework Convention on Climate
Change (UNFCCC) requires reporting of these six
gases and the commitments under the UNFCCC and
Kyoto Protocol are based on the combined emissions
of these six gases. Finally, as discussed later, it is
standard practice to compute the “COz equivalency”
of aggregate emissions using GWP.

We disagree with commenters who argued that
grouping all six GHGs is not appropriate because
GHGs are not like other air pollutants that are
comprised of numerous substances of concern (e.g.,
VOCs and PM). First, as noted previously, we are
following the approach to a single air pollutant
comprised of the aggregate of the six GHGs initially

165a

adopted in the contribution finding and followed in
the LDVR. Many of these same comments have
already been addressed in the contribution finding
and Response to Comment (RTC) document for that
action, and those responses apply equally here.

In addition to the reasons described in the
endangerment and contribution findings, there are
CAA permitting programmatic and _ policy
advantages to using the sum-of-six construct for the
GHG air pollutant for PSD and title V applicability
purposes. We believe now, as we did at proposal, that
the benefits in using the cumulative group of GHGs
outweigh any implementation advantages to using
an individual-GHG-based metric. The advantages to
sum-of-six definition include that it may: (1) Allow
significantly more flexibility to sources for designing
and implementing control strategies that maximize
reductions across multiple GHGs and would also
likely align better with possible future regulations
that allow for such flexibility; (2) more effectively
support possible future offsets oor trading
mechanisms that involve different source categories
and different compositions of GHG emissions; and (3)
could better accommodate and harmonize with
future regulations because it establishes one class of
pollutants that includes individual components that
may, in turn, become subject to specific emission
standards under future regulatory efforts.

We disagree with commenters who believe that
aggregating the GHGs under one GHG metric for
permitting applicability purposes would lead to an
excessive amount of source permitting activity. This
is because the phase-in approach addresses
overwhelming permitting burdens associated with

166a

permitting of GHGs. It does so by designing our
applicability thresholds to allow for a manageable
amount of new permitting actions based on the
emissions from sources using the sum-of-six metric.
If we based applicability on individual gases,
(assuming, again, that we had authority to deviate
from the definition of “air pollutant” as used in the
LDVR), we would still need to determine what level
of permitting is manageable and appropriate based
on thresholds on an individual gas basis and would
expect that the final rule would result in the same
levels of remaining burden. Accordingly, unless the
permitting program were being implemented at the
statutory thresholds, the effect of a decision to
aggregate or not aggregate would not reduce
workload; rather, it would simply shift work from
permitting facilities that trigger based on combined
GHGs to those that trigger based on individual
GHGs. Although we acknowledge that this may
affect applicability for a particular source, we
disagree with the comment that doing so would
conflict with our conclusions based on the “absurd
results” or “administrative necessity” doctrines. By
using a consolidated and weighted measurement, we
are able to direct the limited administrative
resources to those new sources and modifications
with the greatest impact on GHG emissions.

We also believe that the additional flexibility
resulting from the sum-of-six GHG metric will
provide substantially more opportunities for sources
to address emission increases of GHGs than they
would have had under an individual gas based
metric, and, thereby, possibly reduce their
permitting burden through multi-gas mitigation

167a

strategies. We disagree with the comment that
isolating BACT review on sources that emit a single
GHG necessarily leads to better environmental
results than it would for sources that undergo a
combined review for all six gases. To vhe contrary,
given that Congress built in considerations of energy,
environmental, and economic impacts into the BACT
requirement, we think that allowing consideration of
those factors across six gases will likely result in
decisions that more appropriately account for those
impacts at the source.

2. Identifying Which GHGs Are Included in the
Group

As discussed previously, we proposed to include
the combination of six well-mixed GHGs as the air
pollutant that triggers PSD and title V applicability:
COe, CHs4, Ne2O, SFs, HFCs, and PFCs. Some
commenters supported including all six. They cite
the proposed contribution findings that identify the
pollutant through the sum-of-six construct, and they
emphasize that EPA, in order to protect the public,
has to control all the GHGs it has regulated and
reduce the overall impact of the mix of six GHGs.

However, a substantial number of commenters,
mainly from industry sectors who also disagree with
grouping the GHGs together, contend that only the
constituent gases that are actually subject to controls
under the LDVR should be included in determining
applicability under the Tailoring Rule. Some of these
commenters believe that only the three compounds
(CO2, CH4, N2O) for which the LDVR contains
emissions standards or caps should be considered in
the GHG metric for permitting, while others would
also add HFCs (which are included in a credit

168a

flexibility arrangement under the LDVR) for a total
of four GHGs. These commenters argued that PSD is
not triggered for all six GHGs by the LDVR because
under the proposed PSD interpretation in the
Interpretive Memo, actual emission controls under
the Act are required to trigger PSD obligations for a
given pollutant. They also argue that including all
six would conflict with EPA’s rationale for the
Tailoring Rule by leading to larger numbers of
sources subject to permitting, thereby increasing the
harm that EPA says it wants to avoid. They further
assert that the EPA cannot exercise its discretion to
widen the scope of PSD and title V applicability to
six GHGs when it is relying on the judicial doctrines
of “absurd results” and “administrative necessity” to
narrow PSD and title V applicability. They explain
that in their view, those doctrines apply only when
EPA has taken all steps possible to narrow the scope
of PSD and title V and thereby avoid the
administrative problems that force it to rely on those
doctrines.

There were a few comments on whether to include
specific gases as part of the sum-of-six grouping.
Several commenters representing sectors that have
significant SFs usage specifically argue that SF¢
should not be included as a GHG, at least at this
time, because there are no known SF*° controls, it is
not clear how PTE would be calculated from such
facilities, and EPA has not addressed the economic
burden that regulation of these facilities would
create. A solid waste industry commenter asserts
that the Tailoring Rule should confirm that CH, and
N2O will not be regulated under PSD or title V

169a

because these pollutants are only emitted in
miniscule amounts from automobiles.

We disagree with commenters who suggest that
because the LDVR actually reduces only four of the
six GHGs, EPA may apply PSD and title V to only
those four GHGs. It is true that the LDVR standard
for the single air pollutant that is comprised of the
aggregate of six GHGs consists of individual
standards for only four particular constituents of the
single air pollutant—which are emissions limits or
caps for three GHGs (CO2, CH4, and N2O) and an
emission crediting option for one GHG (HFCs)—but
this does not dictate that only those four compounds
are subject to regulation for permitting purposes.
Although the LDVR results in reductions only with
respect to four specific GHGs, as a legal matter the
LDVR standard covers the entire set of GHGs that as
a class are the single “air pollutant” in the
contribution finding. Similar to our rationale for
addressing the group of six GHGs as one pollutant
for PSD and title V applicability purposes, we must
adhere to the definition of applicability, cited
previously, in the final LDVR for GHGs and include
CO2, CH4, N2O, SFs, HFCs, and PFCs. We do not
have discretion to select only a subset of these gases
in defining our GHG threshold metric for the
permitting applicability purposes. See LDVR, May 7,
2010, 75 FR 25398-—99, section III.A.2.c. (discussing
EPA’s exercise of discretion under section 202(a) in
setting emissions standards applicable to emission of
the single air pollutant).

For the same reasons, we disagree that this
approach is inconsistent with the Agency’s final
action in “EPA’s Interpretation of Regulations that

170a

Determine Pollutants Covered by Federal Prevention
of Significant Deterioration (PSD) Permit Program.”
While it is the case that only four constituent gases
are reduced by the LDVR, the “air pollutant” that is
controlled, and thus “subject to regulation,” is the
group of six, and it is this “air pollutant” to which
PSD and title V apply.

We also disagree with commenters who suggested
that including all six GHGs in_ determining
permitting applicability would conflict with our
“absurd results” and “administrative necessity”
rationale for the phase-in periods and applicability
thresholds for GHGs. Even if we did have discretion
to identify the air pollutant for PSD and title V
purposes as consisting of only four of the six well-
mixed GHGs, we do not believe that doing so would
have any meaningful impact on the administrative
burdens that are at the heart of our reliance on the
“absurd results” and “administrative necessity”
doctrines. The number of additional permitting
actions and amount of additional permitting burden
resulting from including all six GHGs, rather than
four, is minimal. This is because the administrative
burden of GHG permitting is dominated by CO2 and
CH, emission sources. For example, with a major
source threshold set at 100,000 tpy COve, the
combined population of sources that would be major
for NeO, HFCs, PFCs, and SF6 accounts for fewer
than two percent of the GHG sources that would
remain covered.

For similar reasons, we disagree with commenters
who specifically suggest SF¢ emissions should not be
included in the applicability metric for GHGs. As we
have stated earlier in this section, our selection of

17la

the GHG metric is driven by the definition of the “air
pollutant” as defined in the LDVR, and in
consideration of the final GHG endangerment
finding. SF¢ is specifically included as one of the
“well-mixed greenhouse gases” in the definition of air
pollutant in the contribution finding, and is included
in the definition of the air pollutant in the LDVR for
which that rule is applicable. We do not believe we
have the discretion to define the “air pollutant”
differently for PSD and title V applicability purposes
than the definition of the “air pollutant” that is
regulated elsewhere. In any event, including SF¢
emissions based on the thresholds finalized in this
rulemaking does not add an excessive administrative
burden for permitting authorities. Based on our
threshold evaluation study, we estimate that less
than 40 sources of SF¢ nationwide would exceed the
100,000 tpy COze threshold. Furthermore, SF is a
high GWP gas and, as discussed elsewhere, we have
included a mass-based trigger for high GWP gases
that will likely have the effect of further reducing
this count.

For the same reasons, we disagree with the
commenters who suggest we include black carbon
and other short-lived climate forcers to the list of
GHGs, as well as commenters asking for an
exclusion of CH, and Ne2O. The definition of the air
pollutant, as cited in the LDVR, includes CHa and
N2O and does not include black carbon or other
short-lived gases.

3. Use of GWP vs. Mass-Based GHG Thresholds

For the reasons discussed previously, we are
determining permit program applicability based on
the sum-of-six well-mixed gases that comprise the

172a

GHG air pollutant. This section discusses our use of
both the COse metric and mass emissions of the
GHGs for applicability purposes.

Under our proposal, a source’s emissions of all six
GHGs would be combined into a single metric by
multiplying the mass of each individual GHG (in tpy)
by its GWP value, and summing these products to
determine the total emissions of the GHG pollutant
in tpy COze. We received comments on this aspect of
the proposed metric. Several commenters explicitly
support the use of GWP and the COce metric for
GHG emissions. These commenters believe EPA has
the authority to select an appropriate metric to
measure GHGs in the PSD program, and policy
considerations support the choice of GWP. Some of
them note that GWP is a widely-used metric which
employs internationally-recognized conversion
factors to compare GHGs based upon their climate
properties, and some add that states and local areas
that have climate action plans for GHG reductions
use COvze. Some of these commenters believe this
metric will ensure a standard measure across all
permitting agencies and will lead to a more effective
system for permitting authorities and create more
opportunities to reduce emissions over the full class
of GHGs, rather than focusing on reducing individual
GHGs.

On the other hand, some commenters oppose the
use of GWP and COszve, believing that thresholds
should be based on individual mass-based emissions
for each GHG. Some of these commenters felt that
EPA has no discretion to ignore the metric for
regulation established by Congress for PSD in
section 169 of the Act. Some commenters were also

173a

concerned that the use of COze will complicate the
implementation of BACT because sources that
trigger PSD will be required to install BACT for each
regulated pollutant, not for COve. As a result, a
source that exceeds the threshold primarily due to its
COz2 emissions would be forced to install BACT for all
other individual GHGs, regardless of how minor
those other emissions may be. Finally, a commenter
was concerned that use of GWP would complicate
implementation because GWP values can sometimes
change.

In our proposal preamble discussion of GHG
metric, EPA also raised the possibility of including a
limitation in the metric to address the prospect
(expected to occur only rarely) that high-GWP gases
could be emitted in quantities less than statutory
thresholds for PSD and title V but nevertheless
exceed the proposed thresholds in terms of COce.
Most commenters on this subject support a dual
threshold under which a source would be subject to
title V or PSD only if its GHG emissions exceeded
both the statutory thresholds on an actual tonnage
basis and the tailored thresholds on a COcve basis.
Commenters supporting this approach felt that it
would be unlawful to apply PSD when GHGs are
below the statutory thresholds, or when there is not
a net emissions increase. Others added that the
complexity of accounting for emissions according to
both mass and GWP should be manageable and is
not a reason to ignore the role of mass-based
emission rates in determining the applicability of
PSD requirements. Additionally, one commenter
observed that a dual threshold is consistent with
phasing in the Tailoring Rule and is an effective way

174a

to address the current uncertainty surrounding how
to measure high-GWP gases such as SFs. In contrast,
a few commenters stated they do not support a dual
threshold, primarily on the grounds that there is no
benefit to the added complexity.

After considering these comments, we have
decided to adopt applicability thresholds in the final
rule based on a COze metric for the sum-of-six well-
mixed gases, and also to adopt an additional mass-
based threshold for the sum-of-six gases as discussed
in the proposal. First, as discussed in the previous
section, we have explained why the appropriate
pollutant for PSD purposes is the single pollutant
GHG, which is composed of the six well-mixed gases.
Regarding the COze metric, we continue to believe
there are a number of advantages, as laid out in the
proposal, to a COvze measure that would not be
available if we used only a mass-based metric. These
include: (1) A COze metric, by incorporating the GWP
values, best addresses the relevant environmental
endpoint, which is radiative forcing of the GHGs
emitted; (2) when combined with a sum-of-six gases
approach, the CQOze metric best allows for
consideration of their combined effects when sources
emit any one or combination of the six well-mixed
GHGs; (3) a cumulative CQze metric is consistent
with the metric used in the mandatory GHG
reporting rule and other related rules and guidelines;
and (4) a COse metric allows more flexibility for
designing and implementing control strategies that
maximize reductions across multiple GHGs. We
recognize the tension between the mass-based metric
in the statute and the COvze-based metric we are
adopting in this rule, but as discussed later, we will

175a

address this by also retaining the mass-based metric.
Moreover, given our need to tailor our approach to
covering sources of GHGs, we believe that the
considerations driving our choice to also use a COzve-
based metric are appropriate for defining the phase-
in and allow for permitting resources to be directed
at those sources and modifications that have the

greatest impact on radiative forcing of the GHGs
emitted.

We recognize the concern of commenters who
stated that we cannot ignore the statutory thresholds
based on the mass-based emissions of an air
pollutant as described under CAA section 169(1). As
we mentioned in the proposal, because both the PSD
and title V statutory thresholds are expressed on a
mass basis (i.e., tons of a pollutant with no weighting
values applied) we were concerned from a legal
standpoint that the metric proposed (COze) could
have the effect of subjecting to PSD or title V
requirements a source whose emissions fall below
the statutory threshold limits on a strictly mass
basis, but whose COze-based emissions exceed the
COve thresholds we establish under the Tailoring
Rule. As an example, in rare instances it is possible
that a source may emit only a non-CO2 GHG in very
small amounts, on a mass basis, but one that carries
a very large GWP. In this case, it is possible that the
source may emit the GHG in amounts that fall below
the PSD andor title V statutory applicability
threshold (100 or 250 tpy, as applicable) on a mass
basis, but exceed the 100,000 COze PSD and title V
applicability thresholds for Step 2 finalized in this
action. Under these circumstances, without a mass-
based threshold, the source would trigger PSD and

176a

title V for its COze emissions even though its GHG
mass emissions would not, in fact, exceed the
statutory triggers.

Upon review of the comments pertaining to this
issue and further analysis of the legal and
programmatic implications, we are adopting a two-
part applicability process, for both major source
applicability determinations for GHGs under PSD
and title V and for determining if a net increase has
occurred in PSD applicability determinations for
modifications. As explained in the RTC document, we
accomplish this two-step applicability approach by
continuing to rely on the existing mass-based
applicability provisions in the current regulations,
and by including new regulatory provisions that add
a definition of “subject to regulation” that in turn
includes the phase-in thresholds. Similarly, for PSD
modification reviews and _ associated netting
analyses, the same two-step process must be used.
Our summary in section IV.A described how we
expect this provision to be implemented in practice.

We acknowledge that the possibility of changing
GWP values is a downside to the use of COcve for the
GHG metric, and we address this comment in the
next section, where we discuss our plan to codify
GWP values. By codifying GWP, any changes will be
manageable, and, in our judgment, will not outweigh
the benefits of a COve-based approach. We also
acknowledge that a CQOve-based approach may
appear to complicate the BACT review and
implementation process. However, we disagree with
the commenter’s ultimate conclusion that BACT will
be required for each constituent gas rather than for
the regulated pollutant, which is defined as the

177a

combination of the six well-mixed GHGs. To the
contrary, we believe that, in combination with the
sum-of-six gases approach described above, the use of
the COvze metric will enable the implementation of
flexible approaches to design and implement
mitigation and control strategies that look across all
six of the constituent gases comprising the air
pollutant (e.g., flexibility to account for the benefits
of certain CH, control options, even though those
options may increase COz2). Moreover, we believe that
the COze metric is the best way to achieve this goal
because it allows for tradeoffs among the constituent
gases to be evaluated using a common currency.

4. Determining What GWP Values Are To Be Used

At proposal, we proposed to link the calculation of
COve for GHGs to GWP values in EPA’s “Inventory
of U.S. Greenhouse Gas Emissions and Sinks” (GHG
Inventory). See, e.g., proposed 40 CFR 51.166(b)(58).
Numerous commenters expressed concerns about
this proposal on various grounds, including the
following:

* The EPA should follow the proper notice-and-
comment procedures and the requirements of the
Information Quality Act for the relevant technical
underpinnings of the proposal. The EPA relies upon
the GWPs of the IPCC without providing the
supporting data for review, and it is inappropriate to
use this as a basis for this rule without first making
all the raw data available for public inspection and
comment.

*- The EPA cannot tie the definition of GWP to the
GHG Inventory because it is a non-regulatory
document that may be changed without notice-and-

178a

comment rulemaking. Before EPA uses a new GWP,
that GWP must be subject to notice and comment to
comply with the requirements of CAA section 307
and the Administrative Procedure Act (APA).

* An annual update of GWP would create a
moving target for sources conducting applicability
determinations and assessing compliance with minor
NSR and PSD emission limits. The EPA needs to
ensure that applicability and compliance with limits
continue to be based on the GWP that existed when

the determination was made or the limit was
established.

- The EPA should freeze the GWP at the current
values by incorporating those values into the
regulation. The EPA could still revise the “NSR”
GWP, but would have to revise the regulation to do
so.

Commenters added that it is important to ensure
that all permitting agencies are using the same
calculations for the determination of COze for GHGs.

We agree with commenters who suggested we
should codify, either in the Tailoring Rule or through
reference to codified values in another rulemaking,
the GWP values to be used in permitting analyses.
We agree that this approach provides certainty as to
which GWP values need to be used by permitting
authorities and allows sources to plan appropriately
for possible changes in the GWP values. As
mentioned in the comments, recommended GWP
values from IPCC can change over time. While this is
infrequent—the last such changes were in 2007—
when it occurs, there are generally significant lag
times in universal adoption of new values because of

179a

inconsistencies that could be created in national
inventories and emission reporting mechanisms. In a
regulatory setting, such as in the permitting
programs, this could potentially create significant
implementation issues, such as when a GWP change
occurs while a permit action is in progress.'!6 EPA
also recognized similar potential implementation
issues in developing its final mandatory GHG
reporting rule, and codified in the regulatory text for
that rule the GWP values to be used in reporting
GHGs as part of that final rulemaking.

For these reasons, we have decided to follow the
approach in the mandatory GHG reporting rule and
require that for PSD and title V permitting
requirements, wherever emissions calculations are
performed, that permitting authorities and sources
use GWP values that are codified in EPA rules. We
will establish the GWP values for PSD and title V
rules based on a cross-reference to the values that
are codified in the EPA’s mandatory GHG reporting
rule. 74 FR 56395, Table A—1 to subpart A of 40 CFR
part 98—Global Warming Potentials. Any changes to
Table A~1 of the mandatory GHG reporting rule
regulatory text must go through an appropriate
regulatory process. In this manner, the values used
for the permitting programs will reflect the latest
values adopted for usage by EPA after a regulatory
process and will be consistent with those values used

16 We note that our approach does not entirely avoid the
possibility that a GWP change can occur while a permit is in
progress although it will ensure advance notice of such a
change. In the event that we plan to propose a change to GWP
values, we will work with permitting authorities as necessary to
provide guidance to sources on transitional issues.

180a

in the EPA’s mandatory GHG reporting rule.
Furthermore, the lead time for adopting changes to
that rule will provide a transition time to address
implementation concerns raised by commenters.

5. Use of Short Tons vs. Metric Tons

We proposed that the GHG metric would be
expressed in terms of English (or short) tons, rather
than metric (or long) tons. A few commenters support
using short tons for this purpose. Others prefer the
use of metric tons, and most of them note that the
mandatory GHG reporting rule is based on metric
tons and believe that the Tailoring Rule should be
consistent with that rule. These commenters believe
that using different units in the two rules would be
confusing and could result in sources that are not
subject to the mandatory GHG reporting rule
becoming subject to PSD. Some of the commenters
add that various “cap and trade” legislative proposals
also quantify GHGs in metric tons. A few other
commenters recommend that EPA harmonize the
applicability thresholds established under the
Tailoring Rule and the mandatory GHG reporting
rule without expressing a preference for short or
metric tons.

We are finalizing our proposal to use short tons
because short tons are the standard unit of measure
for both the PSD and title V permitting programs
and the basis for the threshold evaluation to support
this rulemaking. Calculation inputs for PSD are
typically prepared in English units (e.g., pounds of
fuel, British thermal units (Btu), etc.) which is the
common convention for all PSD analyses and the
units of the statutory thresholds under the Act.

18la

It is true that the GHG reporting rule uses metric
tons, but this does not create an inconsistency
between permitting programs and the reporting rule
because the two rules already use _ different
applicability approaches. Although we originally
proposed 25,000 tpy as the major source level for
permitting programs, which was similar to the
threshold in the reporting rule, we decided to adopt
substantially higher thresholds in the final rule.
Furthermore, even if the numbers were similar, the
thresholds used for the reporting rule are based on
actual emissions, while the PSD and title V
programs thresholds are based on PTE. Therefore,
we are less persuaded by arguments for consistency,
and believe it is more important for ease of permit
program implementation to ensure that GHG
emissions calculations for PSD and title V will build
on the same set of input variables used to develop
short-ton based estimates for non-GHG pollutants.
Thus, the use of short tons should actually facilitate
the development of the GHG emission estimate. It
would likely be more confusing to require a multi-
pollutant PSD applicability analysis to present
emissions information using different units for
different pollutants, as would be the case if we
required metric tons for GHG but continue to use
short tons for every other pollutant. Finally, we do
not expect this choice to introduce additional
complexity because the conversion between short
tons and metric tons is a very simple calculation.
Therefore, based on these considerations we are
requiring that short tons be used as the basis for
emission calculations used to meet PSD and title V
permitting requirements.

182a

B. Rationale for Thresholds and Timing for PSD and
Title V Applicability to GHG Emissions Sources

In this subsection, we describe our legal and policy
rationale for our determinations concerning PSD and
title V applicability to GHG emissions sources. This
subsection includes: (1) An overview of our rationale;
(2) data concerning costs to sources and
administrative burdens to permitting authorities; (3)
a review of the Chevron legal framework and the
“absurd results,” “administrative necéssity,” and
“one-step-at-a-time” doctrines, as well as a review of
how those doctrines fit into the Chevron framework;
(4) an overview of the relevant PSD and title V
requirements and their legislative history; (5) our
application of the “absurd results” doctrine for
tailoring the PSD requirements; (6) our application
of the “absurd results” doctrine for tailoring the title
V requirements; (7) our plans to issue further
rulemaking that will address the “absurd results”
basis for both PSD and title V requirements; (8) our
rationale for the phase-in schedule for applying PSD
and title V to GHG sources; (9) our application of the
“administrative necessity” basis for tailoring the PSD
and title V requirements; and (10) our application of
the “one-step-at-a-time” basis for tailoring the PSD
and title V requirements.

1. Overview

Under the familiar Chevron two-step approach to
construction of agency-administered statutes, the
agency must first, at Chevron Step 1, determine
whether Congress’s intent in a particular provision
on a specific question is clear; and if so, then the
agency must follow that intent. If the intent of the
provision is not clear, then the agency may, under

183a

Chevron Step 2, fashion a reasonable interpretation
of the provision. The best indicator of congressional
intent is the literal meaning of the provision and
generally, according to the case law, if the literal
meaning addresses the specific question, then the
agency should follow the literal meaning.

However, the courts have developed three
doctrines relevant here that authorize departure
from a literal application of statutory provisions. The
first is the “absurd results” doctrine, which
authorizes such a departure if the literal application
would produce a result that is inconsistent with
congressional intent, and particularly if it would
undermine congressional intent. The judicial
doctrine of “administrative necessity” authorizes an
agency to depart from statutory requirements if the
agency can demonstrate that the _ statutory
requirements, as written, are impossible to
administer. The “one-step-at-a-time” doctrine
authorizes an agency, under certain circumstances,
to implement a statutory requirement through a
phased approach. Each of the three doctrines fits into
the Chevron framework for statutory construction
because each of the three is designed to effectuate
congressional intent.

To apply the statutory PSD and title V
applicability thresholds literally to sources of GHG
emissions would bring tens of thousands of small
sources and modifications into the PSD program
each year, and millions of small sources into the title
V program. These extraordinary increases in the
scope of the permitting programs would mean that
the programs would become several hundred-fold
larger than what Congress appeared to contemplate.

184a

Moreover, the great majority of additional sources
brought into the PSD and title V programs would be
small sources that Congress did not expect would
need to undergo permitting and that, at the present
time, in the absence of streamlined permit
procedures, would face unduly high permitting costs.
Further, again at the present time, in the absence of
streamlined permit procedures the administrative
strains would lead to multi-year backlogs in the
issuance of PSD and title V permits, which would
undermine the purposes of those programs. Sources
of all types—whether they emit GHGs or not—would
face long delays in receiving PSD permits, which
Congress intended to allow’ construction or
expansion. Similarly, sources would face long delays
in receiving title V permits, which Congress intended
to promote enforceability. For both programs, the
addition of enormous numbers of additional sources
would provide relatively little benefit compared to
the costs to sources and the burdens to permitting
authorities. In the case of PSD, the large number of
small sources that would be subject to control
constitute a _ relatively small part of the
environmental! problem. In the case of title V, a great
many of the sources that would be newly subject to
permit requirements would have “empty” permits,
that is, permits that do not include any applicable
requirements, and that therefore serve relatively
little purpose. For these reasons, the “absurd results”
doctrine applies to avoid a literal application of the
thresholds at this time. By the same token, the
impossibility of administering the permit programs
brings into play the “administrative necessity”
doctrine. This doctrine also justifies not applying the

185a

PSD or title V applicability threshold provisions
literally to GHG sources at this time.

The situation presented here is exactiy the kind
that the “absurd results,” “administrative necessity,”
and “one-step-at-a-time” doctrines have been
developed to address. Separately and
interdependently, they authorize EPA and the
permitting authorities to tailor the PSD and title V
applicability provisions through a phased program as
set forth in this rule, and to use the initial period of
phase-in to develop streamlining measures, acquire
expertise, and increase resources, all of which would
facilitate applying PSD and title V on a broader scale
without overburdening sources and permitting
authorities. In this manner, the phased approach
reconciles the language of the statutory provisions
with the results of their application and with
congressional intent.

2. Data Concerning Costs to Sources and
Administrative Burdens to Permitting Authorities

This final action concerning applicability of PSD
and title V to GHG-emitting sources, including the
decisions on timing for the selected permitting
thresholds, is based on our assessments of both the
costs to the regulated sources to comply with PSD
and title V permitting requirements and the
administrative burdens to the permitting authorities
to process PSD and title V permit actions for GHG-
emitting sources. This section provides a summary of
our cost and administrative burden assessments of
permitting that would be required in the absence of

any tailoring as well as under various tailoring
options.

186a

Our estimates of costs to the sources and
administrative burdens to the permitting authorities
from PSD and title V applicability for GHG
emissions are based on labor and cost information
from the existing Information Collection Requests
(ICRs) for PSD and title V programs.'? We apply the
same basic methodology used for the proposal, which
incorporates information on numbers and types of
affected sources and estimated permitting actions.
We evaluate administrative burdens in terms of
staffing needs, time for processing permits, and
monetary costs, and we make some judgments about
how those burdens would affect the permitting
authorities’ ability to effectively manage and
administer their programs with the addition of GHG
emission sources. We present the administrative
burden data for applying PSD and title V
requirements at the literal statutory thresholds—
that is, the 100/250 tpy levels for PSD (and 0 tpy for
modifications) and the 100 tpy level for title V—as
well as at other thresholds, which range from 25,000
tpy COze to 100,000 tpy COze. We have significantly
revised upwards our assessments of costs to sources
and administrative burdens since proposal, and we
summarize later our reasons for doing so. We also
present significant comments concerning
administrative burdens, and our responses to those
comments.

In the next section, concerning legal and policy
rationale for our actions, we discuss how these data

17 “Summary of Methodology and Data Used to Estimate
Burden Relief and Evaluate Resource Requirements at
Alternative Greenhouse Gas (GHG) Permitting Thresholds;”
Prepared by EPA Staff; March 2010.

187a

on costs to the sources and administrative burdens to
the permitting authorities informed our decisions
that PSD and title V requirements should not, at
present, be applied to GHG-emitting sources under
the literal terms of the statutory thresholds as well
as our decisions concerning what thresholds to apply
for Steps 1 and 2 of the applicability phase-in

approach and the applicability floor of 50,000 tpy
COrze.

a. Costs to Sources

As we did at proposal, we have estimated costs to
the sources of complying with PSD and title V
starting from the data in the ICRs. We recognize
that the sizes of the sources, as measured by their
emissions, that would be swept into the PSD and
title V programs would vary greatly, and that their
permitting costs would vary as well. For example,
their PSD permitting costs would depend on the
amount and types of their emissions and their
control requirements. Accordingly, we have
determined average costs, as described later.

For PSD, at proposal, we estimated that on
average, an industrial source would incur costs of
$84,500 to prepare the PSD application and receive
the permit, and on average, a commercial or
residential source would incur costs of 20 percent
that amount, or $16,900. 74 FR 55337 col. 3 to 55339
col. 3. For this action, we retain the same burden
estimates for an average industrial source. This type
of source would need 866 hours, which would cost
$84,500, to prepare the application and the PSD
permit. However, based on comments received, we
have determined that a more accurate estimate for
an average commercial or residential source is 70

188a

percent of that amount of time that an industrial
source would need, up from our proposal of 20
percent. Thus, an average commercial or residential
source would need 606 hours, which would cost
$59,000, to prepare the PSD application and receive
the permit. We are increasing this time over what we
proposed because we now recognize that virtually all
commercial and residential sources will have no
experience with the PSD permitting process, and
therefore will face a significant learning curve that
will entail more time to complete the application,
develop control recommendations, and take the other
required steps. We believe this learning period could
extend from 2 to possibly 4 years or more from the
date that the sources become subject to PSD
requirements, depending on the type and actual
number of new sources that come in for permitting.
In addition, we expect that in many cases, draft PSD
permits for GHGs will receive comments from
various stakeholders, from citizens groups to
equipment vendors, who will seek to participate in
the permit process, and that all this could add to the
hours that the permittee will need to invest in the
process.!® The actual costs to sources to install BACT
controls, while still uncertain at this point, would
likely add additional costs across a variety of sources
in a sector not traditionally subject to such
permitting requirements.

For title V, at proposal, we estimated that on
average, an industrial source would incur costs of

18 “Summary of Methodology and Data Used to Estimate
Burden Relief and Evaluate Resource Requirements at
Alternative Greenhouse Gas (GHG) Permitting Thresholds”;
Prepared by EPA Staff; March 2010.

189a

approximately $46,400 to prepare the title V
application and receive the permit, and on average, a
commercial or residential source would incur costs of
10 percent that amount, or almost $5,000. 74 FR
55338 col. 1 to 55339 col. 3. For this action, we retain
the same burden estimates for an average industrial
source. This type of source would need 350 hours,
which would cost $46,400, to prepare the application
and the title V permit. However, we have determined
that a more accurate estimate for an average
commercial or residential source is 50 percent of that
amount of time that an industrial source would need,
up from our proposal of 10 percent. Thus, an average
commercial or residential source would need about
175 hours, which would cost $23,200, to prepare the
title V application and receive the permit. This
increase is due to the same reasons as with the PSD
program just discussed. We now recognize that
virtually all commercial and residential sources will
have no experience with the title V permitting
process and, therefore, will face a _ significant
learning curve that will entail more time to assess,
for the first time, their GHG emissions (because such
sources are not covered by EPA’s mandatory GHG
reporting rule), complete the application, respond to
permitting authority comments, meet other title V
administrative requirements, and respond to
interested stakeholders. !9

19 “Summary of Methodology and Data Used to Estimate
Burden Relief and Evaluate Resource Requirements at
Alternative Greenhouse Gas (GHG) Permitting Thresholds”;
Prepared by EPA Staff; March 2010.

190a

b. Administrative Burdens to Permitting Authorities

(1) Estimated Permitting Authority Burden at
Proposal

As at proposal, we estimated the administrative
burdens to the permitting authorities at the various
threshold levels for PSD or title V applicability as
follows. First, for a particular threshold level, we
estimated the number of GHG-emitting sources that
would be subject to PSD requirements because they
would undertake new construction or modification,
and the number of existing sources that would be
subject to title V requirements. Second, we estimated
the average additional administrative burden and
cost of each PSD permitting action and each title V
permitting action for the GHG-emitting sources.
Third, we multiplied those two estimates, and the
product is the additional administrative burden at
the particular threshold level. We employed the
same methodology for this final rule, but, as
discussed later, and described in more detail in our
final burden analysis,2° we have updated several key
assumptions since the proposal as a result of our
consideration of comments received.

First, we present the administrative burdens at
the statutory levels for PSD and title V applicability.
At proposal, for the PSD program, we estimated the
administrative burdens that would result from
applying PSD at the 100/250 tpy major emitting
facility threshold levels in two ways, as described in

20 “Summary of Methodology and Data Used to Estimate
Burden Relief and Evaluate Resource Requirements at
Alternative Greenhouse Gas (GHG) Permitting Thresholds”;
Prepared by EPA Staff; March 2010.

19la

this section. We stated that at present, 280 sources
are subject to PSD each year, both for new
construction and modifications. This figure served as
the baseline from which to calculate increases in
administrative burdens due to permitting GHG-
emitting sources.

The first method that we used to calculate the
administrative burdens to the permitting authorities
was in terms of workload hours, which we then
converted to monetary costs. To make the workload
calculation, we first estimated the number of GHG-
emitting sources that would become subject to PSD
through new construction and modification. Based on
our GHG threshold data analysis, we estimated that
almost 41,000 new and modified sources per year
would become subject to PSD review. We first
calculated the number of new sources that would
become subject to PSD. To do this, we estimated
growth rates for the various sectors, and then
applied those growth rates to the numbers of sources
in those sectors. We then calculated the number of
modifications. To do this, we first assumed that each
year, two percent of sources that meet or exceed the
threshold levels for PSD applicability due to their
conventional pollutants undertake modifications. We
then calculated the number of sources that would
meet or exceed the threshold levels for PSD
applicability due to their GHG emissions, and
applied the same assumption that two percent of
them would undertake modifications. In this
manner, we estimated the number of modifications of
GHG-emitting sources that would become subject to
PSD.

192a

We noted that currently, 280 PSD permits are
issued each year, but that applying PSD to GHG-
emitting sources at the 100/250 tpy statutory
threshold levels would cause an increase in permits
of more than 140-fold. The reason for the
extraordinary increase in PSD applicability les
simply in the fact that it takes a relatively large
source to generate emissions of conventional
pollutants in the amounts of 100/250 tpy or more,
but many sources combust fossil fuels for heat or
electricity, and the combustion process for even small
quantities of fossil fuel produces quantities of COz2
that are far in excess of the sources’ quantities of
conventional pollutants and that, for even small
sources, equal or exceed the 100/250 tpy levels.

Based on the 140-fold increase in permits, we then
estimated the per-permit burden on permitting
authorities. As we stated in the proposal:

We estimated the number of workload hours and
cost a permitting authority would expend on each
new source and each modification. We based these
estimates on the workload hours and cost for
processing permits for new sources of non-GHG
emissions, which we derived from labor and cost
information from the existing ICRs for PSD
programs. The ICRs_ show that permitting
authorities expend 301 hours to permit a new or
modified industrial source * * *.

We then made assumptions for number of
workload hours and costs for new sources of GHG
emissions. We assumed that permitting new
industrial GHG sources that emit in excess of the
250-tpy threshold would be of comparable complexity
to permitting non-GHG emitting industrial sources

193a

that are subject to PSD. Thus, for these sources, we
assumed that permitting authorities would expend
the same number of workload hours and costs, on a
per-permit basis, as they do for non-GHG emitting
industrial sources. On the other hand, for
commercial and residential GHG sources that emit
GHGs above the 250-tpy threshold (and as a result
would be subject to the requirements of the PSD
permitting program at this threshold level), we
assumed that the workload hours and cost for
permitting these sources would be significantly less
than—only 20 percent of—the hours and cost
necessary to prepare and issue initial PSD permits
or permit modifications for industrial GHG sources.
This 20-percent estimate amounts to 60 hours of
permitting authority time per residential or
commercial permit.

Based on these assumptions, the additional
annual permitting burden for permitting authorities,
on a national basis, is estimated to be 3.3 million
hours at a cost of $257 million to include all GHG
emitters above the 250-tpy threshold.

74 FR 55301 col. 2.

Note that at the proposal, in calculating the PSD
administrative burdens that would occur each year
due to GHG emissions, we did not undertake
separate calculations for the administrative burdens
associated with permitting obligations stemming
from the GHG emissions of the 280 sources alre-dy
subject to PSD permitting requirements due to their
conventional pollutants. In effect, we treated these
280 sources are part of the over 40,000 sources that
would become subject to PSD due to their GHG
emissions.

194a

The second way that we evaluated the burden on
permitting authorities was by reviewing a study
conducted by state and local air permitting agencies.
As we said in the preamble:

In addition to conducting our burden analysis, we
also reviewed summary information from state and
local air permitting agencies regarding additional
resources and burden considerations if GHG sources
that emit above the 100/250-tpy thresholds were
subjected to the PSD and title V programs. This
information covered 43 state and local permitting
agencies, representing programs from different
regions of the country and various permitting
program sizes (in terms of geographic and source
population coverage) * * *. This information showed
significant burdens projected by permitting agencies
with adding sources of GHG emissions in terms of
staffing, budget, and other associated resource needs.
Importantly, the agencies based their analysis on the
assumption that, for purposes of determining
whether a source is major, its emissions would be
calculated on an actual emissions (“actuals”) basis,
and not on a PTE basis. On an actuals basis, the
agencies estimated a 10-fold increase in the number
of permits.

Specifically, the agencies estimated that:

- Assuming, again, that number of permits was to
increase by 10-fold (based on actual emissions), the
resulting workload would require an average of 12
more [full-time equivalents (FTEs)] per permitting
authority at an estimated cost of $1 million/year;

* Without the additional FTEs, the average
processing time for a permit would increase to 3

195a

years, which is three times the current average
processing time;

* Permitting authorities would need 2 years on
average to add the necessary staff;

* Permitting authorities would also need, on

average, eight additional enforcement and judicial
FTEs;

* Ninety percent of permitting agencies would
need to train their staff in all aspects of permitting
for sources of GHG emissions.

- A quarter of permitting agencies were currently
under a hiring freeze.

We went on to explain that this state survey
significantly underestimated the administrative
burdens:

It is important to reiterate that the state and local
permitting information on burden was based on the
number of additional facilities subject to PSD
because their emissions of GHGs exceed the 100/250-
tpy thresholds at actual emissions rates, not PTE-
based emissions rates. However, the PSD
applicability requirements are based on PTE. By
adjusting the increase in number of permits to
account for GHG sources that exceed the 100/250-tpy
applicability thresholds based on their PTE
emissions, EPA estimated a 140-fold increase in
numbers of PSD permits, much more than the 10-
fold increase estimated by the states based on actual
emissions.

74 FR 55301 col. 2-3.

In addition to PSD, we also estimated title V
burdens at the statutory threshold. At proposal, for

196a

the title V program, we estimated the administrative
burdens that would result from applying title V
requirements at the 100 tpy major source threshold
level in the same two ways as for PSD, as follows.
The first method was to calculate the administrative
burdens in terms of workload hours, which we then
converted to monetary costs. To make the workload
calculation, we first estimated the number of existing
GHG-emitting sources that would become subject to
title V. Based on our GHG threshold data analysis,
we estimated that approximately 6 million sources
would become subject to title V. Compared to the
14,700 title V permits currently issued, this would be
an increase in permits of more than 400-fold. We
noted, in addition, that most of the 14,700 sources

already subject to title V also emit GHGs and may be
affected as well.

We then described the type of work that the
permitting authorities would need to do for these
GHG-emitting sources—the six million that would
become newly subject to title V and most of the
14,700 that are already subject to title V—as follows.
Note at the outset that the permitting authorities’
workload is greater for sources newly subject to title
V than for existing sources that seek a revised or
renewed permit. As EPA noted in the preamble:

[T]he [| ] permits [for the 6 million new sources]
would need to include any requirements for non-
GHGs that may apply to the source, such as
provisions of an applicable SIP. For any such
requirements, permitting authorities would also
need to develop terms addressing the various
compliance assurance requirements of title V,
including monitoring, deviation reporting, six-month

197a

monitoring reports, and annual compliance
certifications.

Adding to the burden described above would be
the burden to add GHG terms to the 14,700 existing
title V permits. While, in general, existing title V
permits would not immediately need to be revised or
reopened to incorporate GHG (because as noted
above, there are _ generally not applicable
requirements for GHGs that apply to such sources),
permitting authorities may face burdens to update
existing title V permits for GHG under two possible
scenarios: (1) EPA promulgates or approves any
applicable requirements for GHGs that would apply
to such a source, which would generally require a
permit reopening or renewal application, or (2) the
source makes a change that would result in an
applicable requirement for GHGs to newly apply to
the source, such as PSD review, which would
generally require an application for a permit
revision. Permitting authorities will also need to
process permit renewal applications, generally on a
five-year cycle, and such renewals would need to
assure that the permit properly addresses GHG.
Finally they would have to process title V
applications for new sources (including all the PSD
sources previously discussed).

74 FR 55302 cols. 2-3.

In light of those demands, we estimated the per-
permit burden on permitting authorities as follows.
Note, at the outset, that as with PSD, we based the
workload hours on information in ICRs for industrial
sources, and we then assumed that the workload for
commercial and residential sources would be the

198a

indicated percentage of the workload for industrial
sources:

As with PSD, we have quantified the extent of the
administrative problem that would result in
workload hours and cost on the basis of information
concerning hours and costs for processing existing
title V permits that is indicated on [CRs. However,
we recognize that more than 97 percent of these new
sources would be commercial and residential sources.
We estimate that for permitting authorities, the
average new commercial or residential permit would
require 43 hours to process, which is 10 percent of
the time needed for the average new industrial
permit. For an average existing permit, which
permitting authorities would need to process through
procedures for significant revisions and permit
renewals, adding GHG emissions to the permit
would result in, we estimate, 9 additional hours of
processing time, which is 10 percent of the amount of
time currently necessary for processing existing
permits. We estimate that the total nationwide
additional burden for permitting authorities for title
V permits from adding GHG emissions at the 100-tpy
threshold would be 340 million hours, which would
cost over $15 billion.

74 FR 55302 col. 3.

As with PSD, the second way that we evaluated
the burden on permitting authorities at the statutory
threshold was by reviewing a study conducted by
state and local air permitting agencies of the burden
of applying title V to existing GHG-emitting sources
at the 100 tpy statutory threshold level. As we said
in the preamble to the proposed rule:

199a

[Wle also reviewed summary information from
state and local permitting agencies, which showed
significant burdens associated with adding GHGs in
their title V programs in terms of staffing, budget,
and other associated resource needs.?! Again, note
that the permitting agencies based their estimates
on numbers of permits that would be required from
sources subject to the 100-tpy title V applicability
threshold on an actuals—not PTE—basis. Based on
that level, the agencies assumed a 40-fold increase in
numbers of permits, and estimated that:

* The resulting workload would require an
average of 57 more FTEs per permitting agency at an
estimated cost of $4.6 million/ year;

- Without the additional FTEs, the average
processing time for a permit would increase to
almost 10 years, which is 20 times the current
average permit processing time;

- Permitting authorities would need 2 years on
average to add the necessary staff;

- On average, permitting authorities would need
29 additional enforcement and judicial staff;

- Eighty percent of permitting authorities would
need to train their staff in all aspects of permitting
for sources of GHG emission.

- A quarter of permitting agencies were currently
under a hiring freeze.

21 “NACAA Summary on Permitting GHGs Under the Clean Air
Act”; Memorandum from Mary Stewart Douglas, National
Association of Clean Air Agencies to Juan Santiago,
EPA/OAQPS, September 3, 2009.

200a

As with PSD, we added that this state survey

significantly underestimated the administrative
burdens:

It is important to reiterate that, as with PSD, the
state and local information on projected permitting
burden is based on the number of additional facilities
subject to title V because their emissions of GHGs
exceed the 100-tpy thresholds at actual emissions
rates, not the PTE-based emissions rates. However,
the title V applicability requirements are based on
PTE. As noted elsewhere in this preamble, the state
and local agencies estimated a 40-fold increase in
numbers of title V permits based on the amount of
GHG sources’ actual emissions. By adjusting the
summary estimates provided by the state and local
agencies to account for GHG sources that exceed the
100-tpy threshold based on their PTE emissions,
EPA estimated that the average permitting
authority would need 570 more FTEs to support its
title V permitting program.

74 FR 55302 col. 3—553083 col. 1.

(2) Revisions to Proposal Estimates of Permitting
Authority Burden

We received numerous comments from state and
local authorities stating that EPA had
underestimated the administrative burden on the
permitting authorities in the proposal. State and
local authorities stated that in particular, EPA
underestimated the number of modifications and the
amount of time it would take permitting authorities
to process permits, particularly for commercial and
residential sources. Based on the comments and
additional analysis that we have conducted in

20l1la

response, we are revising in several respects our
estimates of the administrative burdens for applying
PSD and title V at the statutory threshold levels.

First we present revisions to our analysis
regarding the burdens at the statutory levels. Before
we present those changes, we want to note a revision
to our methodology that affected our estimate of the
number of permits currently issued under existing
programs. We are revising upwards the number of
sources that are already subject to PSD permitting
requirements anyway for their conventional
pollutants, which, as discussed previously, we refer
to as “anyway” sources. This revision has
implications both for (1) the number of sources that
would become subject to PSD due to their GHG
emissions; and also (2) the baseline number of
sources already subject to PSD, which we use to
compare the amount of increases in administrative
burden due to permitting GHG sources. At proposal,
we stated that 280 sources each year are subject to
PSD due to their new construction or modifications.
However, upon further analysis, we have realized
that this figure is too low because it includes only
sources that have emissions of one or more NAAQS
pollutants at the 100/ 250 tpy thresholds and that
are located in areas of the country that are
designated attainment or unclassifiable for all of
those pollutants, and thus are not designated
nonattainment for any of those NAAQS pollutants.
We estimate that another 520 sources have
emissions of one or more NAAQS pollutants at the
100/250 tpy thresholds and are located in areas of
the country that are nonattainment for at least one
of those NAAQS pollutants. Some of these 520

202a

sources may also emit one or more pollutants at the
100/250 tpy level for which their area is designated
attainment or unclassifiable, and therefore may be
subject to PSD for those pollutants. Accordingly, the
correct number of “anyway” s°urces subject to PSD
each year is the 280 sources that are located in areas
that are attainment or unclassifiable for each
pollutant that the sources emit at the 100/250 tpy
level, plus at least some of the 520 sources that are
located in areas that are nonattainment for at least
one of the NAAQS pollutants that the sources emit
at or above the 100/250 tpy threshold. In the absence
of data on the number of nonattainment NSR
permits that do not have a PSD component, and
because we expect this to be a small number, we
have assumed for purposes of this action, that each
of the 520 sources is subject to PSD for at least one
pollutant, so that we will consider all 800 sources as
subject to PSD. Of this number, we estimate that 70
percent, or 560 sources will undergo a modification,
while the remaining 240 permitting actions will
involve new construction. Of the modifications, we
assume that 80 percent, or 448, would become
subject to additional requirements due to their GHG
emissions because those projects have combustion-
related activities that would likely emit GHGs in the
requisite quantities. Our estimate of 80 percent of
modification activities significantly involving
combustion activities is based on a review of a
random sample of PSD permits. In total we estimate
that 688 sources, either upon new construction or
modification, would need to add GHG requirements
to their otherwise required PSD permitting action.

203a

We should also note that in this rulemaking we
are justifying our conclusions about permitting
authority administrative burdens on the basis of
their PSD and title V cost as calculated on both a
separate basis and a combined basis. That is, we
believe that the administrative burdens of the PSD
program justify our tailoring approach for the PSD
requirements, and the administrative burdens of the
title V program justify our tailoring approach for the
title V requirements, but in addition, the
administrative burdens of both programs on a
combined basis justify the tailoring approaches.
Viewing the administrative burdens on a combined
basis provides a useful perspective because most
permitting authorities have a single organizational
unit that is responsible for both the PSD program
and the title V program, and in many cases, the
same employees work on both programs. In addition,
in some jurisdictions, permitting authorities issue a
single, merged permit that includes both PSD and
title V requirements. For these reasons, considering
administrative burdens on a combined PSD and title
V basis, offers a more accurate picture of the issues
these agencies will face in transitioning to GHG
permitting.

Turning to the revisions to our burden estimates
that we made as a result of public comment, we
begin by noting that many commenters believed that
we significantly underestimated the administrative
burdens associated with the proposed thresholds or
that the administrative burden under the proposed
thresholds would still overwhelm the states and
result in significant permitting delays and
uncertainty for sources. Many of these commenters

204a

indicate that our estimate of the number of sources
that would be subject to permitting is too low, and
some add that we have underestimated the per-
permit effort required. (More detail on these
comments is given elsewhere on the methodology
used in the analysis.) Several state and local
agencies provided estimates of the increased number
of permits and/or staff that would be required under
the thresholds we proposed that were higher than
our original estimates. Specifically, commenters
recommended that we increase the estimated
administrative burdens for PSD permits by
anywhere from 100 percent to over 2,000 percent;
and that we increase the burdens for title V permits
by anywhere from 29 percent to 240 percent. Many
commenters indicated that EPA has not adequately
accounted for “synthetic minor” sources or
modification projects, stating that many such sources
and projects will not be able to keep GHGs below the
proposed thresholds, and those who could do so may
not be able to establish enforceable synthetic minor
limits. Numerous commenters also stated that the
EPA has underestimated the rate of major
modifications for GHGs under PSD. Some
commenters assert that we underestimated the
number of permits required for specific industry
sectors, including the oil and gas production
industry, the natural gas transmission industry, the
semiconductor industry, the wood products industry,
the brick industry, and landfills. Some of the state
and local commenters also believe that we have
overestimated their ability to hire and train
sufficient staff to administer GHG permitting.

205a

We are persuaded by the data and arguments
provided by the many commenters who believe EPA
underestimated the number of permitting actions
and the burdens of each action, and thus the overall
administrative burdens associated with permitting
GHG sources. Accordingly, we have reevaluated our
assessment of these administrative burdens, for both
the PSD and title V programs. In conducting this
reevaluation, we considered arguments made by the
commenters, as well as any actual data they
provided, and then we determined whether and how
to modify various aspects of our detailed assessment
of the burdens. Based on this consideration we have
substantially revised upwards our estimate of
administrative burdens, based on the analysis
included in the final docket for this rulemaking.??
The revisions affect two elements of our analysis by
showing: (1) A substantial increase in the number of
PSD and title V permits that will occur at a given
threshold, and (2) an increase in the average burden
estimate for each such permit.

Regarding the increase in our estimate of the
number of projects that will occur, we estimated an
increase in both PSD and title V permit actions,
though the greatest changes were for PSD. At
proposal, we estimated that, if PSD requirements
were to apply to GHG sources at the 100/250 tpy
statutory levels, 40,496 projects—consisting of 3,299
projects at industrial sources and 37,197 projects at
commercial or residential sources—would need PSD

22 “Summary of Methodology and Data Used to Estimate
Burden Relief and Evaluate Resource Requirements at
Alternative Greenhouse Gas (GHG) Permitting Thresholds’;
Prepared by EPA Staff; March 2010.

206a

permits each year. Some of these projects involve the
construction of an entirely new source, but the
majority of these are modifications. We now estimate
that at the 100/250 tpy levels, 81,598 projects would
become subject to PSD each year. These projects
include 26,089 actions at industrial sources and
55,509 at commercial and residential sources. We
describe our calculation of this 81,598 amount in a
TSD.23 The great majority of these 81,598 projects
that would become subject to PSD are modifications.
We base these estimates on the assumption that the
significance levels would be 100 tpy regardless of
category.

Our estimate of the number of PSD modifications
is where we made our most significant upward
revisions from our proposal, based on comments. Our
doubling of the estimated PSD permitting actions—
from 40,496 at proposal to 81,598—results from
three separate adjustments we made to our
estimates at proposal of the number of permit
actions that would result from applying PSD to GHG
sources. Two of these increased the number of major
modifications, and one of these increased the number
of major sources and modifications. The most
significant adjustment, and one that was raised by
multiple commenters, was that we undercounted the
number of major modification projects at existing
major sources because we did not include the
existing projects that avoid major PSD review by
either taking “synthetic minor” limits or by netting

23 “Summary of Methodology and Data Used to Estimate
Burden Relief and Evaluate Resource Requirements at
Alternative Greenhouse Gas (GHG) Permitting Thresholds”;
Prepared by EPA Staff; March 2010.

207a

out for conventional pollutants, but that would not
be able to avoid PSD through those mechanisms for
GHGs.

We agree that the ability and procedures for
sources to achieve reductions, or minimize increases,
due to GHGs through adoption of enforceable limits
or through netting out are not well established at
this point. We believe that there will be numerous
instances, particularly for combustion-related
projects, where it will not be possible for sources to
achieve the same level of reductions for COz2
emissions as they do for emissions of nitrogen oxides
(NOx), for example, simply because there are not as
many proven control techniques that can reduce CO2
emissions to the same degree as NOx. Also, more
research will be necessary in the type of emission
units and processes resulting in GHG emissions, and
how they operate over a wide range of utilization
patterns at a variety of source categories, before
permitting authorities will be able to establish
procedures and rules for developing minor source
permit limitations. Therefore, we adjusted our count
of major modification permits under PSD upward to
account for this.

The second change to the number of permits
concerns the general modification rate of 2 percent
that we applied at proposal, based on historical
experience across all pollutant types. Commenters
provided information that suggest that this 2 percent
figure is an underestimate for GHG sources because
their emissions of COz2 are high and accumulate
quickly from various changes involving combustion
units. Therefore, a greater percentage of their
physical or operational changes will result in GHG

208a

emissions in excess of the significance levels that we
identified at proposal. In light of these comments, we
reviewed the source populations and pollutant mix
within the various populations, and determined that
we should revise our general modification rate to 4
percent for GHG sources. This 4 percent rate was
obtained by dividing the current annual major NSR
permit actions involving modifications by the 14,700
existing sources. We have revised our burden
analysis accordingly. Again, the burden analysis in
the docket describes our basis for these calculations
in more detail.

The third adjustment to the number of permits
involves our estimate of the number of sources with
PTE that is greater than the various thresholds
considered. This affects the number of major sources
at the statutory thresholds, which we used to
estimate the number of PSD and title V major
sources, but also has an effect on the number of
major modifications because the number of
modifications depends on the size of the population of
major sources. Commenters provided evidence that
our estimates of capacity utilization (which, as
described previously, we use for estimating potential-
to-emit based on data for actual emissions) for the
general manufacturing source category (referred to
as “unspecified stationary combustion” in our
analysis) and for the oil and gas industry were not
accurate. In our proposal, our estimated range for
capacity utilization for “unspecified stationary
combustion” varied from 70 to 90 percent depending
on manufacturing category. For the oil and gas
industry, our estimate was 90 percent. We received
comments indicating that these utilization rates are

209a

higher than what is normally achieved in real-world
conditions, particularly for smaller manufacturing
type facilities. Accordingly, in this action, we are
using a 50 percent capacity utilization rate for both
of these source categories, which better reflects what
can be deemed reasonable operation under normal
conditions for facilities in these source categories.
This adjustment increased the overall number of
affected facilities at various threshold levels and we
have revised our burden analysis accordingly.

A few commenters asserted that we
underestimated the number of residential homes,
commercial buildings, and retail stores that would be
subject to permitting requirements because these
commenters believed the estimate in EPA’s TSD was
based on actual emissions from space heating
equipment rather than PTE. We wish to clarify that
our threshold analysis estimates for the number of
residential and commercial sources (as well as all
other sources) did use a PTE basis. To calculate the
PTE amount for these sources, we extrapolated from
the actual emissions data for the residential and
commercial sources. Specifically, we assumed that a
typical residential facility operates its fuel
combustion sources at only 10 percent of its capacity
and a typical commercial facility operates at only 15
percent of its capacity. Based on these assumptions,
we multiplied residential actual emissions by a factor
of 10, and commercial actual emissions by a factor of
6.6 to obtain PTE-based estimates. There is very
little information available on the capacity
utilization rates of fuel combustion equipment at
different types of residential and commercial
facilities, but we believe our methodology was

210a

reasonable for these types of sources and we did not
adjust it in response to this comment. Information on
the development of these estimates is provided in our
Technical Support Document for Greenhouse Gas
Emissions Thresholds Evaluation.

The second source of upward revisions to our
administrative burden estimate is that we are
increasing the estimated average cost to permitting
authorities of issuing each PSD and title V permit at
the statutory thresholds. At proposal, we estimated
that for PSD permits, permitting authorities would
expend, on average, 301 hours to permit an
industrial scurce of GHG emissions, and 20 percent
of that time, or 60 hours to permit a commercial or
residential source. After estimating that amount of
workload, we went on to estimate the monetary cost
to permitting authorities of that workload. Similarly,
for title V permits, we estimated at proposal that
permitting authorities would expend 10 percent of
the number of hours needed to process an industrial
permit in order to process a commercial or
residential permit for GHG sources.

We received comments from both permitting
authorities and sources asserting that our
methodology underestimated the administrative
burden on grounds that (1) Our methodology fails to
recognize that when a source triggers PSD for
conventional pollutants, additional labor hours
would be required to issue BACT for GHGs; (2) our
estimate of 60 hours (versus 301 hours) to issue PSD
permits to commercial and residential sources of
GHGs is unrealistically low; (3) our estimate failed to
account for the increase in the corplexity of permits
for criteria pollutants due to (i) increases in criteria

Z2lla

pollutant emissions becoming newly subject to BACT
at sources that are major only for GHGs, which will
result in increased permitting and (ii) BACT controls
for criteria pollutants (e.g., an oxidizer for VOCs)
may result in significant GHG emissions, triggering
an additional BACT determination; and (4) our
methodology failed to account for the significant
additional PSD and title V burdens due to sources
that obtain federally enforceable permit limits on
GHGs in order to become “synthetic minors” and
thereby avoid PSD (and possibly also title V).

Based on these comments and our own
reassessment of permitting actions created by the
addition of GHGs, we have revised upwards in
several ways our estimate of the additional per-
permit costs of applying PSD and title V to GHG
sources, including the following: First we have added
an estimate of the additional permitting cost for
adding a GHG component to “anyway” PSD and title
V permitting actions for conventional pollutants. We
estimated this burden based on information in the
comments together with our own judgment about
how to adjust the burden numbers contained in the
current supporting statements for our approved
permitting ICRs. These adjustments are found in our
revised burden estimate document.

Second, we have raised the per-permit burden
hours for commercial and residential sources for PSD
and title V. At proposal, our estimates were based on
the fact that many of these permits will be
technically simpler due to such factors as a lower
number of emissions points, simpler processes, and
less required modeling. However, commenters
pointed out that, until EPA streamlines its

212a

permitting procedures, there are many permitting
activities that represent a fixed cost, such as public
notice, hearing, and response to comment activities.
In addition, we agree, as commenters pointed out,
that many of these sources will need significantly
more permitting authority staff time to assist them
in the permit application and preparation process
because of their lack of experience with these
requirements. In addition, permitting authorities
will have little, if any, experience in permitting
commercial and residential sources, and therefore
will face a learning curve that will entail more time
to take permitting action. In addition, we expect that
in many cases PSD and title V permit applications
for GHGs will receive comments from various
stakeholders, from citizens groups to equipment
vendors, who will seek to participate in the permit
process, and responding and revising permits
accordingly will add to the hours that the permitting
authority will spend.

As a result, we raised the PSD per-permit hours
for various steps in the permitting process, as
described in the burden estimate document. While
we continue to estimate that permitting authorities
will expend, on average, 301 hours to issue a PSD
permit to an industrial source, and that this would
cost $23,243, we now recognize that a permitting
authority would expend 70 percent of that time or
210 hours, to permit a commercial or residential
source, which would cost $16,216. Similarly, for title
V, while we continue to estimate that permitting
authorities will expend, on average, 428 hours to
issue a title V permit to an industrial source, and
that this would cost $19,688, we now recognize that a

213a

permitting authority would expend 50 percent of the
time, or 214 hours, to permit a commercial or
residential source, which would cost $9,844.

We disagree with commenters who suggested that
by basing our estimates on the numbers of newly
constructing and modifying sources with high
enough emissions to qualify as major emitting
facilities, we failed to account for the costs of sources
that seek “synthetic minor” permits to avoid PSD,
and possibly title V, requirements. In fact, our
methodology includes sources that might take such
limits as newly-major sources for their GHG
emissions; and therefore we count the full
administrative burden associated with a PSD permit
and a title V permit for those sources. In effect; we
assume that such sources would go through PSD or
title V permitting, rather than take “synthetic
minor” limits. We take this approach because
although we suspect that there may, in fact, be
significant synthetic minor activity, we do not have
data that would allow us to determine whether, and
how many of, these sources will be able to adopt
“synthetic minor” limits or restrict their operations
to obtain minor source permitting status. Nor do we
have data on the amount of the administrative
burden that would fall on any particular permitting
authority to establish a “synthetic minor” limit,
except that we understand that the amount varies
widely across states. As a result, we opted to include
these sources in our analysis as sources receiving a
PSD or title V permit. Therefore, to the extent that
synthetic minor activity occurs, our estimate would
already have included the burden for that activity. In
fact, our estimate would have overestimated the

214a

burden to the extent that a permitting authority
would have less administrative costs to issuing a
“synthetic minor” permit, as compared to a PSD or
title V permit.

(3) Revised Burden Estimates at Statutory
Thresholds Based on the revisions just described, we
estimate that in all, if sources that emit GHGs
become subject to PSD at the 100/250 tpy levels,
permitting authorities across the country would face
over $1.5 billion in additional PSD permitting costs
each year. This would represent an increase of 130
times the current annual burden hours under the
NSR major source program for _ permitting
authorities. The permitting authorities would need a
total of almost 10,000 new FTEs to process PSD
permits for GHG emissions.

In addition, we estimate that in all, if sources that
emit GHGs become subject to title V at the 100 tpy
level, permitting authorities across the country
would incur about 1.4 billion additional work hours,
which would cost $63 billion. We estimate that most
of this work would be done over a 3 year period,
which would amount to 458 million in additional
work hours, and $21 billion in additional costs, on an
annual basis over that 3-year period.

We also note that the survey of state and local
permitting authorities described in the proposed
rulemaking continues to shed light on the extent of
the administrative burdens, including staffing,
budget, and other associated resource needs, as
projected by the permitting authorities. As noted
previously, that survey concluded that application of
the PSD requirements to GHG-emitting sources at
the level of 100/250 tpy or more of actual emissions

215a

would, without additional FTEs, increase the
average processing time for a PSD permit from one
to 3 years. The survey further concluded that
application of the title V requirements to GHG-
emitting sources at the level of 100 tpy or more of
actual emissions would, without additional FTEs,
increase the average processing time for a title V
permit from 6 months to 10 years. As we noted at
proposal, this survey assumed a ten-fold increase in
the number of PSD permits and a 40-fold increase in
the number of title V permits due to GHG-emitting
sources, but those assumptions were severely
underestimated because they were based on actual
emissions. At proposal, our calculations, which were
based on potential emissions, indicated a 140-fold
increase in PSD permits and a more than 400-fold
increase in title V permits. In this rulemaking, we
recognize that even our estimates at proposal were
severely underestimated. We now recognize that the
number of PSD permits will be about twice what we
estimated at proposal, and the average processing
time for both PSD and title V permits will be two or
three times greater than what we estimated at
proposal. The survey of state and local permitting
authorities provided other useful information as
well, including the fact that it would take the
permitting authorities 2 years, on average, to hire
the staff necessary to handle a ten-fold increase in
PSD permits and a 40-fold increase in title V
permits, and that 90 percent of their staff would
need additional training in all aspects of permitting
for GHG sources.

216a

(4) Revised Estimates of Administrative Burdens at
Various Threshold Levels

In order to determine the appropriate PSD and
title V applicability level for GHG sources, we not
only estimated the burden at the _ statutory
thresholds, as described previously, but we also
estimated the number of sources, number of
permitting actions, and amount of administrative
burden at various applicability levels for both PSD
and title V, based on the revised methodology
described previously, that we used to estimate the
administrative burdens of applying PSD and title V
at the statutory levels. This information is
summarized in Table V—1. Note that Table V—1 also
includes, in the last column, the administrative
burdens, described previously, associated with the
100/250 tpy thresholds.

[Content Omitted]

As described in the TSD, we considered several
different major source/major modification threshold
combinations. We chose the combinations to reflect
representative, incremental steps along the possible
range. Because it 1s time-and resource-intensive to
develop estimates for a given step, we chose intervals
that best reflect representative points within the
range, given those time and resource constraints.
Here, we discuss key observations about some of the
combinations that we assessed. As the table
indicates, under the current PSD and title V
programs, approximately 15,000 sources qualify as
major PSD sources for at least one pollutant and
therefore meet the applicability thresholds. Of these,
approximately 668 sources are subject to PSD
requirements each year for at least one pollutant—

217a

240 because they undertake new construction, and
448 because they undertake modifications. The
permitting authorities’ administrative burdens for
the NSR program are 153,795 work hours, and $12
million. For the title V program, the 15,000 sources
are, for the most part already permitted, and
therefore need revised permits as required and
renewal permits on a 5-year schedule. The
permitting authorities’ title V administrative
burdens on an annual basis are 1,349,659 work
hours and $62 million.

The first threshold Table 1 describes—and which,
as discussed later, we are adopting for Step 1—is the
“anyway source approach. Under this approach, (i)
PSD applies to the GHG emissions from projects that
are subject to PSD anyway as new sources or major
modifications due to their emissions of non-GHG
pollutants and that result in an increase (or, in the
case of modifications, a net increase) of at least
75,000 tpy COce; and (ii) title V applies to what we
will call “anyway” title V sources, that is, sources
that are subject to title V anyway due to their
emissions of non-GHG pollutants. Under this
approach, the number of sources subject to PSD each
year—including new construction and
modifications—is the same as under the current
program, but the permitting authorities will need to
address GHG emissions as part of those permitting
actions each year and, to do so, will require, each
year, 34,400 additional workload hours costing an
additional $3 million. For title V, we estimate that
the number of title V sources that require permitting
actions will, on average, be the same each year, but
permitting authorities will need to address GHG

218a

requirements for some of them; as a result,
permitting authorities will need, each year, 27,468
additional work hours costing $1 million in
additional funding.

Another threshold described in Table V-—1 is the
one we are adopting under Step 2, as described later,
under which (i) sources will be subject to PSD on
account of their GHG emissions if they newly
construct and emit at least 100,000 tpy COve, or if
they are existing sources that emit at least 100,000
tpy COze of GHGs and make a

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0899%3A0. Public record. Not legal advice.