[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Rules and Regulations]
[Pages 2591-2596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-769]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

ADDRESSES: EPA has established a docket for this rulemaking under 
Docket ID No. EPA-HQ-OAR-2010-0107. All documents in the docket are 
listed in the http://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the 
U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West 
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Air 
Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, NC 27711; 
telephone number: (919) 541-3450; fax number: (919) 541-5509; e-mail 
address: [email protected]. For information regarding the Louisville 
Metro Air Pollution Control District permitting authority, contact Ms. 
Lynorae Benjamin, Chief, Regulatory Development Section, Air Planning

[[Page 2592]]

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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Jefferson County, Kentucky, is the only entity affected by this 
rule.\1\ By this action, EPA is making a finding of failure to submit 
the required SIP for the LMAPCD because its EPA-approved SIP PSD 
program does not apply to GHG-emitting sources in Jefferson County, 
Kentucky. This action only applies to Jefferson County, Kentucky, and 
does not apply to the remainder of the Commonwealth of Kentucky. On 
December 13, 2010, the Kentucky Division of Air Quality provided EPA 
with the required corrective SIP revision to address PSD requirements 
related to GHG-emitting sources for all other areas in Kentucky. On 
December 29, 2010, EPA took final action to approve the Commonwealth's 
December 13, 2010, SIP revision. See 75 FR 81868.
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    \1\ In a final action published on December 29, 2010, EPA 
announced that the Agency made a separate finding of failure to 
submit for seven other states (comprising eight state and local 
programs) because those states failed to provide required SIP 
revisions to correct their EPA-approved SIP PSD programs for 
applicability to GHG-emitting sources by the established deadlines 
for those states. See 75 FR 81874. For convenience, we refer to 
``states'' in this rulemaking to collectively mean state and local 
permitting authorities. The seven states addressed in EPA's December 
29, 2010, rulemaking are Arizona, Arkansas, Florida, Idaho, Kansas, 
Oregon, and Wyoming. In Arizona, the finding applies to two EPA PSD 
permit programs--``Pinal County'' and ``Rest of State (Excludes 
Maricopa County, Pima County, and Indian County).''
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B. How is the preamble organized?

    The information presented in this preamble is organized as follows:

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

II. Background

A. CAA and Regulatory Context

    EPA described the relevant background information in the proposed 
and final rulemaking for what we call the GHG PSD SIP call or, simply, 
the SIP call,\2\ as well as in what we call the Tailoring Rule.\3\ 75 
FR at 31518-21. Knowledge of this background information is presumed 
and will be only briefly summarized here.
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    \2\ ``Action To Ensure Authority To Issue Permits under the 
Prevention of Significant Deterioration Program to Sources of 
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP 
Call--Final Rule,'' 75 FR at 77698, 77700-04 (December 13, 2010) 
(final SIP call); ``Action To Ensure Authority To Issue Permits 
Under the Prevention of Significant Deterioration Program to Sources 
of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and 
SIP Call--Proposed Rule,'' 75 FR 53892, 53896-98 (September 2, 2010) 
(proposed SIP call).
    \3\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 31514, 31518-21 
(June 3, 2010).
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1. SIP PSD Requirements
    In general, under the CAA PSD program, a stationary source must 
obtain a permit prior to undertaking construction or modification 
projects that would result in specified amounts of new or increased 
emissions of air pollutants that are subject to regulation under other 
provisions of the CAA. CAA sections 165(a)(1), 169(1). As we described 
in the SIP call and elsewhere, several CAA provisions, taken together, 
mandate that SIPs include PSD programs that are applicable to any air 
pollutant that is subject to regulation under the CAA, including, as 
discussed later in this preamble, GHGs on and after January 2, 2011. 
CAA sections 110(a)(2)(C), 110(a)(2)(J), 161.
2. SIP Inadequacy and Corrective Action
    The CAA provides a mechanism for the correction of SIPs with 
certain types of inadequacies. CAA section 110(k)(5) authorizes the 
Administrator to ``find [ ] that [a SIP] * * * is substantially 
inadequate to * * * comply with any requirement of this Act,'' and, 
based on that finding, to ``require the State to revise the [SIP] * * * 
to correct such inadequacies.'' This latter action is commonly referred 
to as a ``SIP call.'' In addition, this provision provides that EPA 
must notify the state of the substantial inadequacy and authorizes EPA 
to establish a ``reasonable deadline[ ] (not to exceed 18 months after 
the date of such notice)'' for the submission of the corrective SIP 
revision.
    If EPA does not receive the corrective SIP revision by the 
deadline, CAA section 110(c)(1)(A) authorizes EPA to ``find [ ] that 
[the] State has failed to make a required submission.'' Once EPA makes 
that finding, CAA section 110(c)(1) requires EPA to ``promulgate a 
Federal implementation plan at any time within 2 years after the 
[finding] * * * unless the State corrects the deficiency, and [EPA] 
approves the plan or plan revision, before [EPA] promulgates such 
[FIP].''

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

    In recent months, EPA has taken several distinct actions related to 
GHGs under the CAA. Some of these, in conjunction with the operation of 
the CAA, trigger PSD applicability for GHG-emitting sources on and 
after January 2, 2011, but focus the scope of PSD on the largest GHG-
emitting sources. These actions include what we call the Endangerment 
Finding,\4\ the Light-Duty Vehicle Rule,\5\ the Johnson Memo 
Reconsideration,\6\ and the Tailoring Rule.
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    \4\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \5\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \6\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
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    Closely related to this action, EPA promulgated the PSD GHG SIP 
call, under authority of CAA section 110(k)(5). In that action, 
applicable to 13 states, the Administrator issued a finding of 
substantial inadequacy as well as a SIP call and established a deadline 
for submission of the corrective SIP revision. The deadline

[[Page 2593]]

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

         Table II-1--SIP Call States and SIP Submittal Deadlines
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                                                           SIP submittal
                     State (or area)                         deadline
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Arizona: Pinal County...................................        12/22/10
Arizona: Rest of State (Excludes Maricopa County, Pima          12/22/10
 County, and Indian Country)............................
Arkansas................................................        12/22/10
California: Sacramento Metropolitan AQMD................        01/31/11
Connecticut.............................................        03/01/11
Florida.................................................        12/22/10
Idaho...................................................        12/22/10
Kansas..................................................        12/22/10
Kentucky (Jefferson County): Louisville Metro Air               01/01/11
 Pollution Control District.............................
Kentucky: Rest of State (Excludes Louisville Metro Air          03/31/11
 Pollution Control District (Jefferson County)).........
Nebraska................................................        03/01/11
Nevada: Clark County....................................        07/01/11
Oregon..................................................        12/22/10
Texas...................................................        12/01/11
Wyoming.................................................        12/22/10
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    The SIP submittal deadlines that the final SIP call rule 
established for the states reflect, in almost all instances, a 
recognition by EPA and the states of the need to move expeditiously to 
assure the availability of a permitting authority. In the SIP call, EPA 
made clear that the purpose of establishing the shorter period as the 
deadline--for any state that advised us that it did not object to that 
shorter period--is to accommodate states that wish to ensure that a FIP 
is in effect as a backstop to avoid any gap in PSD permitting. 75 FR at 
77710.
    Seven of the 13 SIP-called states (including 8 of the 15 affected 
PSD programs) stated that they did not object to a SIP submittal 
deadline of December 22, 2010 (the earliest possible deadline), 75 FR 
at 77705, and those states are the subject of a final rule that EPA 
issued on December 29, 2010. See 75 FR 81874. The LMAPCD requested a 
SIP submittal deadline of January 1, 2011, has since missed that SIP 
submittal deadline, and thus is the subject of this final rule.\7\
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    \7\ More detailed discussion about the 13 states is included in 
the Supplemental Information Document prepared by EPA in support of 
the final SIP call. The Supplemental Information Document can be 
found in the docket for this rulemaking, at Document ID No. EPA-HQ-
OAR-2010-0107-0129.
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    Also closely related to this action, EPA proposed a FIP \8\ action 
related to GHGs. We stated in the proposed FIP that if any of the 
states for which we issued the SIP call did not meet its SIP submittal 
deadline, we would immediately issue a finding of failure to submit a 
required SIP revision, under CAA section 110(c)(1)(A), and immediately 
thereafter promulgate a FIP for the state. We explained that we would 
take these actions immediately in order to minimize any period of time 
during which larger-emitting sources may be under an obligation to 
obtain PSD permits for their GHGs when they construct or modify, but no 
permitting authority is authorized to issue those permits. 75 FR at 
53889. Seven of the 13 SIP-called states (including 8 of the 15 
affected PSD programs) stated that they did not object to a SIP 
submittal deadline of December 22, 2010 (the earliest possible 
deadline). Subsequently, for those seven states, EPA made a finding of 
failure to submit a corrective SIP revision (75 FR at 77705; December 
29, 2010) and by separate action promulgated a FIP.\9\
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    \8\ Proposed rule, ``Action to Ensure Authority to Issue Permits 
Under the Prevention of Significant Deterioration Program to Sources 
of Greenhouse Gas Emissions: Federal Implementation Plan.'' 75 FR 
53883 (September 2, 2010). The notice can be found in the docket for 
this rulemaking, at Document ID No. EPA-HQ-OAR-2010-0107-0045.
    \9\ In a final action published on December 30, 2010, EPA 
promulgated a FIP to apply to seven states (comprising eight state 
and local programs) because those states failed to provide required 
SIP revisions to correct their EPA-approved SIP PSD programs for 
applicability to GHG-emitting sources. Final rule, ``Action to 
Ensure Authority to Issue Permits under the Prevention of 
Significant Deterioration Program to Sources of Greenhouse Gas 
Emissions: Federal Implementation Plan.'' 75 FR 82246.
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III. Final Action: Finding of Failure of Kentucky's Louisville Metro 
Air Pollution Control District To Submit a Corrective SIP Revision

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

[[Page 2594]]

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

IV. Statutory and Executive Order Reviews

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

    This is a final EPA action but is not subject to notice-and-comment 
requirements of the Administrative Procedure Act (APA), 5 U.S.C. 
553(b). EPA believes that because of the limited time provided to make 
findings of failure to submit regarding SIP submissions, Congress did 
not intend such findings to be subject to notice-and-comment 
rulemaking.
    However, to the extent such findings are subject to notice-and-
comment rulemaking, EPA invokes the good cause exception pursuant to 
the APA, 5 U.S.C. 553(b)(3)(B), which excuses the notice-and-comment 
obligation ``when the agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' While the good cause 
exception is to be narrowly construed, Utility Solid Waste Activities 
Group v. Environmental Protection Agency, 236 F.3d 749, 754 (D.C. Cir. 
2001), it is also ``an important safety valve to be used where delay 
would do real harm.'' U.S. Steel Corp. v. U.S. Environmental Protection 
Agency, 595 F.2d 207, 214 (5th Cir. 1979). Notice and comment is 
impracticable where ``an agency finds that due and timely execution of 
its functions would be impeded by the notice otherwise required.'' 
Utility Solid Waste Activities Group, 236 F.3d at 754. Notice and 
comment is contrary to the public interest where ``the interest of the 
public would be defeated by any requirement of advance notice.'' Id. at 
755.
    Here, notice and comment are unnecessary because no EPA judgment is 
involved in making a nonsubstantive finding of failure to submit 
elements of SIP submissions required by the CAA. Furthermore, providing 
notice and comment would be impracticable because of the limited time 
provided under the statute for making such determinations. Finally, 
notice and comment would be contrary to the public interest because it 
would divert agency resources from the critical substantive review of 
complete SIPs. See 58 FR 51270, 51272, n.17 (October 1, 1993); 59 FR 
39832, 39853 (August 4, 1994). In addition, in this case, notice and 
comment would be impracticable and contrary to the public interest for 
the same reasons, discussed earlier in this preamble, why a 30-day 
effective date would be impracticable and contrary to the public 
interest.

B. Executive Order 12866--Regulatory Planning and Review

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

C. Paperwork Reduction Act

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

D. Regulatory Flexibility Act

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

E. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local, or 
tribal governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of the UMRA because it contains no regulatory

[[Page 2595]]

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

F. Executive Order 13132--Federalism

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

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

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

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

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

I. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a 
significant regulatory action under Executive Order 12866. This action 
merely prescribes EPA's action for states that do not meet their 
existing obligation for PSD SIP submittal.

J. National Technology Transfer and Advancement Act

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

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the U.S.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This rule merely prescribes EPA's action for states that 
do not meet their existing obligation for PSD SIP submittal.

L. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S. 804(3). EPA is not required 
to submit a rule report regarding this action under section 801 because 
this is a rule of agency organization, procedure, or practice that does 
not substantially affect the rights or obligations of non-agency 
parties.

V. Judicial Review

    Section 307(b)(1) of the CAA specifies which Federal Courts of 
Appeal have jurisdiction to hear petitions for review of which final 
actions by EPA. This section provides, in part, that petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit: (i) When the Agency action consists of ``nationally 
applicable regulations promulgated, or final actions taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, if ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.''
    This rule is nationally applicable under CAA section 307(b)(1). It 
is merely the next step in the suite of rules addressing inadequacies 
in SIPs related to 13 states' failure to apply PSD to GHG-emitting 
sources such as the SIP call, the finding of failure to submit issued 
on December 29, 2010, and the FIP issued on December 30, 2010. In 
particular, this rule simply follows up on the finding of failure to 
submit issued on December 29, 2010, which affected seven states that 
chose the earliest possible deadline, and takes the next step to make 
an identical finding for Jefferson County, Kentucky, now that this 
area, too, has missed its SIP submittal deadline. The circumstances 
that have led to this rulemaking are national in scope and are 
substantially the same for the LMAPCD as they were for each of the 
seven affected states in the earlier finding of failure to submit

[[Page 2596]]

issued on December 29, 2010. They include EPA's promulgation of 
nationally applicable GHG requirements that, in conjunction with the 
operation of the CAA PSD provisions, have resulted in GHG-emitting 
sources' becoming subject to PSD; as well as EPA's finding of 
substantial SIP inadequacy, imposition of a SIP call, and establishment 
of deadlines for SIP submittal. Moreover, in this rule, EPA is applying 
the same uniform principles for promulgating the finding of failure to 
submit in Jefferson County, Kentucky, as it did for each of the seven 
earlier-affected states. The FIP for Jefferson County, Kentucky, 
accompanying this rule has substantially the same, if not identical, 
terms as the FIP for each earlier-affected state in the December 30, 
2010, rule. This rulemaking action is supported by the same single 
administrative record as the earlier December 29, 2010, finding of 
failure to submit rule and does not involve factual questions unique to 
the LMAPCD. In addition, as stated earlier in this preamble, this rule 
is part of a single approach to correcting certain inadequacies in SIPs 
in multiple states across the country and in several judicial circuits.
    For similar reasons, this rule is based on determinations of 
nationwide scope or effect. For the LMAPCD, EPA is determining that it 
is appropriate to make this finding of failure to submit effective 
immediately in order to promulgate the FIP immediately and to apply the 
FIP to GHG-emitting sources, but not other sources, in the same way it 
made the same determination for the seven other states in the December 
29, 2010, finding of failure to submit. These determinations are the 
same for each of the states. The provisions of this finding of failure 
to submit are also substantially the same, if not identical, to those 
for the seven earlier-affected states. Moreover, EPA is making this 
finding and promulgating this action within the context of nationwide 
rulemakings and interpretation of the applicable CAA provisions, as 
noted earlier in this preamble.
    Thus, under section 307(b)(1) of the Act, judicial review of this 
final action is available by filing of a petition for review in the 
U.S. Court of Appeals for the District of Columbia Circuit by March 15, 
2011. Any such judicial review is limited to only those objections that 
were raised with reasonable specificity in timely comments. Under 
section 307(b)(2) of the Act, the requirements of this final action may 
not be challenged later in civil or criminal proceedings brought by us 
to enforce these requirements.

VI. Statutory Authority

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

List of Subjects in 40 CFR Part 52

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

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