Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Aggregation; Reconsideration, 19567-19575 [2010-7534]
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Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Proposed Rules
Issued in Renton, Washington on April 2,
2010.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. 2010–8570 Filed 4–14–10; 8:45 am]
BILLING CODE 4910–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 52
[EPA–HQ–OAR–2003–0064; FRL–9133–7]
RIN 2060–AP80
Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NSR): Aggregation;
Reconsideration
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: Pursuant to a proceeding for
reconsideration, the EPA requests
comment on a Clean Air Act (CAA) rule,
the New Source Review (NSR)
Aggregation Amendments, which was
promulgated on January 15, 2009. The
NSR Aggregation Amendments
established a new interpretation of the
existing NSR rules governing the
modification of major sources by
requiring sources and permitting
authorities to combine emissions from
nominally-separate activities at a major
stationary source only when the
activities are ‘‘substantially related.’’
This proposed reconsideration is in
response to a petition from the Natural
Resources Defense Council (NRDC)
received on January 30, 2009. EPA
requests public comment on all issues
included in NRDC’s petition. In light of
the legal and policy issues raised in the
petition and in our own review of the
rule, EPA’s preferred option is to revoke
the NSR Aggregation Amendments. EPA
is also proposing to extend the effective
date of the stay by an additional 6
months, and soliciting comment on a
longer extension of the stay.
DATES: Comments. Comments must be
received on or before May 17, 2010.
Public Hearing. If anyone contacts
EPA requesting the opportunity to speak
at a public hearing concerning the
proposed regulation by April 26, 2010,
EPA will hold a public hearing on April
30, 2010. If a hearing is held, the record
for the hearing will remain open until
June 1, 2010.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2003–0064, by one of the
following methods:
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• https://www.regulations.gov. Follow
the online instructions for submitting
comments.
• E-mail: a-and-r-docket@epa.gov.
• Mail: Air and Radiation Docket,
Environmental Protection Agency, Mail
code 6102T, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460. Please
include a total of two copies.
• Hand Delivery: EPA Docket Center,
Public Reading Room, EPA West, Room
3334, 1301 Constitution Ave., NW,
Washington, DC 20460. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
the applicable docket. EPA’s policy is
that all comments received will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
information claimed to be confidential
business information (CBI) or other
information whose disclosure is
restricted by statute. Do not submit
information that you consider to be CBI
or otherwise protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the https://
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,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
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electronically through https://
www.regulations.gov or in hard copy at
the EPA Docket Center, Public Reading
Room, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC, 20460. 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) 566–1742,
and the telephone number for the Air
Docket is (202) 566–1744.
Public Hearing. If a public hearing is
held, it will be held in Washington, DC.
FOR FURTHER INFORMATION CONTACT: Mr.
David Svendsgaard, Air Quality Policy
Division (C504–03), U.S. Environmental
Protection Agency, Research Triangle
Park, NC 27711, telephone number:
(919) 541–2380; fax number: (919) 541–
5509, e-mail address:
svendsgaard.dave@epa.gov.
To request a public hearing or
information pertaining to a public
hearing on this document, contact Ms.
Pamela Long, Air Quality Policy
Division (C504–03), U.S. Environmental
Protection Agency, Research Triangle
Park, North Carolina 27711; telephone
number (919) 541–0641; fax number
(919) 541–5509; e-mail address:
long.pam@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this sction spply to me?
Entities potentially affected by this
action include sources in all industry
groups and state, local, and tribal
governments.
B. How is this preamble organized?
The preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
II. Overview
A. What is ‘‘Aggregation’’?
B. What events have led to this action?
III. This Action
A. What is the standard for
reconsideration?
B. What issues are being reconsidered?
C. Key Issues Under Reconsideration
1. Lack of Adequate Opportunity for Notice
and Comment on the Adopted Rule
2. Rule may be Inconsistent with a Court
of Appeals Decision for Previous NSR
Rule
a. Background for Our Historic Approach
b. Our Explanation of Our Authority in the
NSR Aggregation Amendments
c. The CAA Requires Aggregation of
Nominally-Separate Changes When They
Collectively can be Seen as One Change
3. Questioning the Need for a Policy
Change
4. State Plan Adoption
5. Proposal to Revoke Rule
6. Proposal to Extend Effective Date
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IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination with Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children from Environmental Health and
Safety Risks
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
to Address
K. Determination Under Section 307(d)
V. Statutory Authority
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II. Overview
A. What is ‘‘Aggregation’’?
When undergoing a physical or
operational change, a source determines
major NSR applicability through a twostep analysis that first considers
whether the increased emissions from a
particular proposed change alone are
significant, followed by a calculation of
the change’s net emissions increase
considering all contemporaneous
increases and decreases at the source
(i.e., source-wide netting calculation) to
determine if a major modification has
occurred. See, for example, 40 CFR
52.21(b)(2)(i). The term ‘‘aggregation’’
comes into play in the first step (Step 1),
and describes the process of grouping
together multiple, nominally-separate
but related physical changes or changes
in the method of operation (‘‘nominallyseparate changes’’) into one physical or
operational change, or ‘‘project.’’ The
emission increases of the nominallyseparate but related changes must be
combined in Step 1 for purposes of
determining whether a significant
emissions increase has occurred from
the project. See, for example, 40 CFR
52.21(b)(40). When undertaking
multiple nominally-separate changes,
the source must consider whether NSR
applicability should be determined
collectively (i.e., ‘‘aggregated’’) or
whether the emissions from each of
these changes should separately
undergo a Step 1 analysis.1
Neither the CAA nor current EPA
rules specifically address the basis upon
which to aggregate nominally-separate
changes for the purpose of making NSR
applicability determinations. Instead,
our 2 aggregation policy developed over
1 Even if activities are determined to be separate
and subject to an individual Step 1 analysis, the
emission increases and decreases may still be
included together in the source-wide netting
calculation if the projects occur within a
contemporaneous period.
2 In this notice, the terms ‘‘we,’’ ‘‘us,’’ and ‘‘our’’
refer to the EPA.
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time through statutory and regulatory
interpretation and applicability
determinations in response to a need to
deter sources from attempting to
expedite construction by permitting
several changes separately as minor
modifications. When related changes are
evaluated separately, the source may
circumvent the purpose of the NSR
program by showing a less than
significant emission increase for Step 1
of the applicability analysis, that could
result in avoiding major NSR permitting
requirements.3 This, in turn, could
result in increases of emissions of air
pollutants from the facility that would
be higher than the increases would be
had the changes been subject to NSR
control requirements. The associated
emissions increases could endanger the
air quality health standard and
adversely affect public health.
Under our longstanding aggregation
policy, we evaluate all relevant and
objective criteria specific to a case in
determining if multiple changes at a
source should be aggregated as a single
project for NSR purposes. See section
III.C.2.a of this notice. Our policy aims
to ensure the proper permitting of
modifications that involve multiple
physical and/or operational changes.
B. What events have led to this action?
On January 15, 2009, we issued a final
rule that changed our interpretation of
the PSD and nonattainment NSR
regulations relating to the definition of
‘‘modification’’ in the CAA 111(a)(4).
The new rule addressed when a source
must aggregate emissions from
nominally-separate changes for the
purpose of determining whether they
are a single project resulting in a
significant emission increase. The final
rule retained the prior rule language
relevant to aggregation, but interpreted
that rule text to mean that sources and
permitting authorities should combine
emissions only when nominallyseparate changes are ‘‘substantially
related.’’ We described in the final rule
preamble the factors that may be
considered when evaluating whether
changes are substantially related, and
we specifically stated that two
nominally-separate changes are not
substantially related if they are only
related to the extent that they both
support the plant’s overall basic
purpose. At the same time, we adopted
a rebuttable presumption that
nominally-separate changes at a source
3 Of course, if a source has a significant increase
in emissions from a change (or aggregated changes),
it is not necessarily subject to NSR; rather, not until
the source also has a ‘‘significant net emission
increase’’ would it be subject to NSR permitting
requirements.
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that occur three or more years apart are
presumed to not be substantially
related. Collectively, this rulemaking is
known as the ‘‘NSR Aggregation
Amendments.’’ For further information
on the NSR Aggregation Amendments,
see 74 FR 2376 (January 15, 2009).
On January 30, 2009, NRDC submitted
a petition for reconsideration of the NSR
Aggregation Amendments as provided
for in CAA section 307(d)(7)(B).4 Under
that CAA provision, the Administrator
may convene a reconsideration
proceeding if the petitioner raises an
objection to a rule that was
impracticable to raise during the
comment period or if the grounds for
the objection arose after the comment
period. In either case, the objection
must be of central relevance to the
outcome of the rule.
On February 13, 2009, we announced
the convening of a reconsideration
proceeding in response to the NRDC
petition. See 74 FR 7193. In order to
allow for completion of the
reconsideration prior to the NSR
Aggregation Amendments becoming
effective, we also announced a 90-day
administrative stay of the rule. See 74
FR 7284 (Feb. 13, 2009). We
subsequently completed a rulemaking
further delaying the effective date until
May 18, 2010. See 74 FR 22693 (May 14,
2009). The extensions enable us to take
comment on issues that are in question
and complete any revisions of the rule
that become necessary as a result of the
reconsideration process.
III. This Action
A. What is the standard for
reconsideration?
As noted above, pursuant to CAA
307(d)(7)(B) of the CAA, an individual
can petition an agency to reconsider a
final rule issued under CAA 307(d)(1) if
the individual can show that:
• It was impracticable to raise the
objection during the public comment
period on the proposed rule, or the
grounds for the objection arose after the
public comment period; and
• The objection is centrally relevant
to the outcome of the rule.
As to the first procedural criterion for
reconsideration, a petitioner must show
why the issue could not have been
presented during the comment period,
either because it was impracticable to
raise the issue during that time or
because the grounds for the issue arose
after the period for public comment (but
within 60 days of publication of the
final action). Thus, CAA 307(d)(7)(B)
does not provide a forum to request EPA
4 John Walke, Natural Resources Defense Council,
EPA–HQ–OAR–2003–0064–0116.1.
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to reconsider issues that actually were
raised, or could have been raised, prior
to promulgation of the final rule.
An agency can deny the
reconsideration of issues when they fail
to meet the procedural test for
reconsideration under CAA
307(d)(7)(B). If, however, there are
adequate grounds for the objections
raised in this petition, the EPA
Administrator must ‘‘* * *convene a
proceeding for reconsideration of the
rule and provide the same procedural
rights as would have been afforded had
the information been available at the
time the rule was proposed.’’ CAA
307(d)(7)(B). In this case, the final rule
adopted interpretations that were not
described in the proposal and on which
the public did not have an opportunity
to offer comment, as described more
specifically below.
B. What issues are being reconsidered?
The basis for this reconsideration
proceeding is NRDC’s petition of
January 30, 2009, in which NRDC
requested reconsideration of many
aspects of the January 15, 2009, final
rule. The reader is directed to the
petition for an exact explanation of each
objection raised by NRDC. See Docket
EPA–HQ–OAR–2003–0064–0116.1. In
summary, NRDC’s main points of
concern include:
• The NSR Aggregation Amendments
are inconsistent with the DC Circuit
Court ruling on the NSR ’’Equipment
Replacement Provision,’’ by creating an
illegal exclusion to the broad ‘‘any
physical change’’ provision in the CAA.
• The EPA failed to identify any
actual problems or inconsistencies with
longstanding policy.
• The 2006 proposal sought to clarify
aggregation rules through proposing
new rule text, but the 2009 final rule
reinterpreted the existing rule text and
was described as a change in policy.
• The term ‘‘substantially related’’ is
vague and undefined, did not appear in
the proposal, retreats from the factors
used in previous aggregation
determinations by EPA (e.g., adopting
the 3-year timing presumption against
aggregation), and eliminates
consideration of EPA’s policy on
circumvention by failure to consider a
company’s intent.
• The final rule is silent, and
therefore confusing, on whether States
must implement the new rule in their
own programs.
• The EPA violated relevant
executive orders through failure to
adequately consult with states during
the development of the rule.
Through this notice, we are taking
comment on a broad range of legal and
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policy issues related to the NSR
Aggregation Amendments. We also
acknowledge an interdependence
among several objections raised in
NRDC’s petition, such that granting
reconsideration on one issue that meets
the standard for reconsideration may
warrant taking comment on a second
issue that may, on its own, not meet the
standard for reconsideration. However,
the basis for the second issue is at stake
depending on what comments are
received on the first issue.
For example, under CAA 307(d)(3)(C),
EPA is required to present for public
comment ‘‘the major legal
interpretations and policy
considerations underlying the proposed
rule.’’ We acknowledge through this
reconsideration proceeding that
portions of the legal basis for the NSR
Aggregation Amendments did not
undergo comment solicitation, and it is
necessary to allow the public an
opportunity to comment fully on the
basic authority for the rule. However, as
is the case with many rules, the
statutory basis of this rule provides the
underpinning for most every aspect of
the rule, and could call into question
the legitimacy of other aspects of the
rule. Therefore, in addition to granting
reconsideration on the legal basis for the
rule, we are also taking comment on
other aspects of the final rule that are
dependent upon a sound legal basis. For
instance, although we requested
comment on a 3-year presumption
against aggregation through our 2006
proposal, in light of the broad legal
issue that is currently under
reconsideration, we believe it is justified
to open for additional comment the
issue of having a presumption against
aggregation because such a presumption
would be necessarily dependent on, and
an outgrowth of, the legal basis of our
rule.
Moreover, a few of the issues raised
in the NRDC petition demonstrate that
there are fundamental components of
the final rule that elicit confusion, such
as whether states with approved
implementation plans must adopt the
new rule and whether their State
Implementation Plans (SIPs) must be
amended. Since the aim of the rule was
to reduce, not promote, confusion with
regard to project aggregation, we are
particularly concerned with this
comment from the petitioner, and it is
one of the primary reasons for delaying
the effective date of the rule while we
reconsider issues raised in the petition.
For these reasons, we invite comment
on all issues raised by the petitioner. In
the sections below, we specifically
describe several key issues on which we
seek comment.
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C. Key Issues Under Reconsideration
1. Lack of Adequate Opportunity for
Notice and Comment on the Adopted
Rule
As noted above, NRDC identifies as
grounds for reconsideration several
issues related to the adoption and
implementation of the ‘‘substantially
related’’ test for aggregating nominallyseparate changes. The proposed rule did
not mention the ‘‘substantially related’’
test adopted in the final rule.5
Additionally, the proposed rule offered
new regulatory text to clarify the criteria
for aggregation, while the final rule
retains the existing text. Our proposed
rule did not discuss the possibility of
changing the interpretation of the
existing text.
A commenter would not have been on
notice of the possibility that we would
adopt the ‘‘substantially related’’ test
without amending the rule text, nor
would a commenter have been on notice
of the need to comment on whether the
existing text was susceptible to this
interpretation. The issue of adopting
this rule in the form and manner we did
is an issue that arose after the comment
period and is of central relevance to the
rulemaking proceeding.
In soliciting comment on the option of
creating time-based presumptions
regarding aggregation, we did not raise
the issue of whether the existing
regulatory text could support the
creation of this presumption. We
‘‘acknowledge[d] that the establishment
of a presumption* * * would go
beyond the codification of the status
quo.’’ See 71 FR 54248. Therefore, we
did not characterize a time-based
presumption as a clarification. We
recognized it could only apply
prospectively. Nevertheless, the final
rule announced the 3-year presumption
against aggregation as an interpretation
of the regulatory text despite the
regulation’s silence on this issue.
In context, commenters could not
have been aware that we were
suggesting the presumption was an
interpretation of the existing regulatory
text rather than a proposal to add a
presumption to the text. Therefore,
commenters did not have an adequate
opportunity to comment on whether the
existing regulatory text could be
interpreted to have a time-based
presumption.
We solicit comment on the change in
approach from the pre-rule policy on
5 Furthermore, subsumed within the
‘‘substantially related test’’ is another feature of the
final rule that was not introduced as a possible
change in policy at proposal—i.e., to not aggregate
projects when their sole common ground is that
they each support the plant’s overall basic purpose.
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aggregation to the ‘‘substantially related’’
test set forth in the preamble to the
January 15, 2009, final rule. We
specifically request comment on any
rule changes that may be needed to
implement the new test. For example, if
we were to retain the ‘‘substantially
related’’ test, then must we amend the
regulatory text for the definition of
‘‘project’’ to say that nominally-separate
changes must be aggregated into a
project if they are substantially related?
Must we also add new regulatory text in
order to establish a time-based
presumption for or against aggregation?
We also solicit comment on whether we
would need new or revised rule
language to adopt a time-based
presumption against aggregation.
Furthermore, we specifically request
comment on whether ‘‘substantially
related’’ is the proper measurement to
apply when determining whether to
aggregate projects. Or does it, as the
petitioner has expressed, add confusion
for sources and permitting authorities
trying to apply the test? Is there another
benchmark that would be more sensible
to use to determine when the emissions
of nominally-separate changes at a
source should be aggregated for
evaluating NSR applicability? If we
decide to retain the substantially related
test or revert to our former test, is the
3-year presumption against aggregation
appropriate?
2. Rule May Be Inconsistent With a
Court of Appeals Decision for Previous
NSR Rule
The NRDC petition identifies our
interpretation of the controlling
statutory term, ‘‘modification,’’ and a key
case discussing that definition as issues
that were impractical to raise during the
comment period and of central
relevance to the rule. While NRDC and
other commenters identified these
matters as being at issue in their
comments, we did not include an
explanation in the proposed rule of how
the EPA aggregation interpretation was
consistent with the statute and the court
decision. In a sense, the rulemaking
process required by CAA 307(d) was
inverted: rather than the EPA providing
a ‘‘statement of basis [summarizing] the
major legal
interpretations* * *underlying the
proposed rule,’’ as required by CAA
307(d)(3)(C), the commenters provided
their views of the law, and we then
provided a legal basis in the final rule
and in the response-to-comment
document. Moreover, the rulemaking
did not simply adopt a theory that was
a logical outgrowth of the theory or
theories suggested in the proposal. The
portion of the proposal discussing
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aggregation was completely silent on
how we interpreted CAA section
111(a)(4) to authorize aggregation and
provided no analysis of the relevant
case law.
Below we set out our understanding
of the statute and case law. We invite
comment on our understanding and
what we believe would be the result
from that understanding—i.e., the
revocation of the NSR Aggregation
Amendments and the reversion to our
pre-existing policy on project
aggregation.
a. Background for our Historic
Approach
Under both the nonattainment NSR
provisions of the CAA as well as the
PSD provisions, a modification of a
major stationary source is treated as
construction of a new source subject to
permitting. Modification is a defined
term under the statute: ‘‘The term
‘modification’ means any physical
change in, or change in the method of
operation of, a stationary source which
increases the amount of any air
pollutant emitted by such source or
which results in the emission of any air
pollutant not previously emitted’’ (CAA
section 111(a)(4)). This definition
requires analyzing whether a physical or
operational change will take (or, post
hoc, has taken) place, and whether it
results in an emission increase. As
noted above, in situations involving
multiple nominally-separate changes at
a source, EPA’s ‘‘aggregation’’ policy
interprets what is the physical or
operational change that must be
assessed for an emission increase.
We calculate the emissions increase
associated with a physical or
operational change at a major stationary
source by reference to de minimis
thresholds (also known as ‘‘significance
levels’’). From the earliest days of the
NSR program, we recognized that a
party seeking to avoid major source NSR
might attempt to break up a single
physical or operational change into
nominally-separate changes in order to
make the emission increase associated
with each change appear to be less than
significant. See 45 FR 52702 (Aug. 7,
1980). As subsequent case law
confirmed, even a small physical or
operational change may satisfy the first
portion of the definition of
modification. State of New York v. EPA,
443 F.3d 880, 890 (DC Cir. 2006), cert.
den. 127 S. Ct. 2127 (2007) (New York
II); Wisconsin Elec. Power Co. v. Reilly,
893 F.2d 901, 908 (7th Cir. 1990). We
recognized that an owner or operator
might apply for multiple minor permits
for nominally-separate, small changes
that by themselves result in de minimis
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emission increases, instead of obtaining
a permit for the collection of changes
that, when examined as a single project,
resulted (or would result) in a
significant emission increase.
We issued several letters since the
early 1980s explaining that we may
enforce the major source permitting
requirements in such cases when a
source ‘‘circumvents’’ major source NSR
by dividing one change and its emission
increase into nominally-separate
physical or operational changes.6 Some
of these letters discussed intent to evade
NSR, but focused more on objective
factors such as the closeness in the
timing of nominally-separate changes
and the integrated planning of these
changes.7 In 1993, we issued a letter
analyzing a series of minor permit
applications for 3M Company’s research
and development facility in
Maplewood, Minnesota.8 This letter has
been widely cited for its discussion of
objective factors that could support a
conclusion that nominally-separate
changes should be treated as one
project. These factors include the filing
of multiple minor source or minor
modification permits for a single source
within a short period of time, funding
information indicating one project,
other reporting on consumer demand
and project levels, other statements from
the business indicating one project,
EPA’s assessment of the economic
realities of the project, as well as the
relationship of the changes to the
overall basic purpose of the plant.
Subsequently, we have issued
additional letters discussing aggregation
at particular plants in certain
circumstances.9 Collectively, these
6 Memorandum from John Calcagni, Director, Air
Quality Management Division, to William B.
Hathaway, Director, Air, Pesticides, and Toxics
Division, EPA Region 6, entitled ‘‘Request for
Clarification of Policy Regarding the ‘Net Emissions
Increase’ ’’ (Sept. 18, 1989).
7 See, e.g., Letter from James Wilburn, Chief, Air
Management Branch, EPA Region 4, to Harold
Hodges, Director, Division of Air Pollution Control,
Tennessee Department of Public Health (Aug. 15,
1983); Memorandum from Darryl Tyler, Director,
Control Programs Development Division, EPA
Office of Air Quality Planning and Standards
(OAQPS), to David Kee, Director, Air Management
Division, EPA Region 5, entitled ‘‘Applicability of
PSD to Portions of Plan Constructed in Phases
Without Permits’’ (Oct. 21, 1986); Letter from Don
Clay, Acting Assistant Administrator, EPA Office of
Air and Radiation, to John Boston, Vice President,
Wisconsin Electric Power Company (Feb. 15, 1989).
8 Memorandum from John Rasnic, Director,
Stationary Source Compliance Division, OAQPS, to
George Czerniak, Chief, Air Enforcement Branch,
EPA Region 5, entitled ‘‘Applicability of New
Source Review Circumvention Guidance to 3M–
Maplewood, Minnesota’’ (June 17, 1993).
9 See, e.g., Letter from Doug Cole, Acting
Manager, Federal & Delegated Air Programs Unit,
EPA Region 10, to Grant Cooper et al., Frederickson
Power L.P. (Oct. 12, 2001); Letter from Gregg
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letters outline an approach where we
would look at case-specific facts and the
relationship between nominallyseparate changes to determine whether
they were a single project to be assessed
for an emission increase under Step 1 of
the NSR applicability test.
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b. Our Explanation of Our Authority in
the NSR Aggregation Amendments
The statute itself defines modification
in the singular: ‘‘any physical change in,
or change in the method of operation of,
a stationary source’’ that increases
emissions. Some have argued that we
cannot aggregate or accumulate
nominally-separate changes to
determine NSR applicability because
they can be viewed as multiple changes.
In response to this argument in
comments on the NSR Aggregation
Amendment proposed rule, we cited the
recent decision in New York II, which
held that the definition of modification
requires ‘‘EPA [to] apply NSR whenever
a source conducts an emissionincreasing activity that fits within one of
the ordinary meanings of ‘physical
change.’ ’’ 443 F.3d at 885. Because
‘‘[s]ubstantially related, nominallyseparate changes can be seen as one
change when viewed as a whole,’’ we
viewed ‘‘[a]ggregation of nominally
separate changes that are substantially
related as ‘fit[ting] within one of the
ordinary meanings of physical
change.’ ’’ 10 Therefore, we viewed
aggregation as allowed under the statute
and the ‘‘substantially related’’ test for
aggregation as a permissible
interpretation of the modification
definition.
Having seen EPA’s analysis of New
York II for the first time in the responseto-comment document supporting the
NSR Aggregation Amendments, NRDC
expressed the view that the foregoing
analysis of that case ‘‘utterly misses the
point.’’ NRDC’s petition acknowledges
that aggregation of nominally-separate
changes that are substantially related is
one of the ordinary meanings of
physical change. However, NRDC notes
that ‘‘aggregation of nominally separate
changes that are not substantially
related’’ also may be within an ordinary
meaning of physical change, especially
when substantially related is defined in
terms of technical or economic
Worley, Chief, Air Permits Section, EPA Region 4,
to Heather Abrams, Georgia Environmental
Protection Division (July 5, 2005); Letter from David
Campbell, Chief, Permits & Technical Assessment
Branch, EPA Region 3, to Matthew Williams,
Pennsylvania Department of Environmental
Protection (Feb. 21, 2007).
10 ‘‘Response to Comments Document for the
Final Action: PSD and Nonattainment New Source
Review (NSR): Aggregation and Project Netting’’,
EPA–HQ–OAR–2003–0064–0111, pg. 8.
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interrelationship and dependence. In
NRDC’s view, because the statute covers
‘‘any physical change,’’ and the NSR
Aggregation Amendments would omit
some of these physical changes from
NSR permitting by not aggregating them,
the NSR Aggregation Amendments
impermissibly narrowed the expansive
reading of the statute’s ‘‘any physical
change’’ required by New York II. See
NRDC petition at 5–6.
c. The CAA Requires Aggregation of
Nominally-Separate Changes When
They Collectively Can Be Seen as One
Change
The issue NRDC raises goes to the
crux of the NSR Aggregation
Amendments. What must be treated as
one physical or operational change
under the definition of ‘‘modification’’ in
the act is the legal underpinning for our
aggregation policy.
The New York II Court held that we
have limited authority to exempt from
NSR those activities that can be
considered a single physical change.
Accordingly, ‘‘any physical change’’
should encompass any change that
reasonably can be considered an
ordinary meaning of the phrase. As the
Court noted, ‘‘[W]hen Congress places
the word ‘any’ before a phrase with
several common meanings, the statutory
phrase encompasses each of those
meanings; the agency may not pick and
choose among them.’’ 443 F.3d at 888.
The logic of New York II applies not
only to physical changes but also to
changes in the method of operation of
a source.
Much of the emphasis of New York II
and other cases has been on whether we
could exclude small changes from being
considered potential modifications as
defined in the Act. However, the New
York II Court’s reasoning also applies to
a rule that would split apart one change
into separate changes in order to limit
the applicability of NSR. The Court
concludes, ‘‘[a]lthough the phrase
‘‘physical change’’ is susceptible to
multiple meanings, the word ‘‘any’’
makes clear that activities within each
of the common meanings of the phrase
are subject to NSR when the activity
results in an emission increase.’’ 443
F.3d at 890. The statute prohibits EPA
from picking and choosing among
meanings of the phrase ‘‘any physical
change * * * or change in the method
of operation’’ if it would result in
omitting a common meaning that would
subject an emission increase to review.
Historically, EPA has analyzed the
question of whether nominally-separate
changes are one change by using a caseby-case review of all relevant and
objective factors that looks for ‘‘indicia,’’
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19571
or indicators, of these changes being one
common aggregate change. As noted
above, one much-cited example of our
analysis of grouping together nominallyseparate changes is appropriate is the
‘‘3M-Maplewood’’ memorandum
discussed above and in the notices for
the proposed and final rules. One
concern about the 3M-Maplewood
analysis has been that one portion of the
analysis suggests that any set of
nominally-separate changes that are
consistent with ‘‘the plant’s overall basic
purpose’’ can be aggregated.11
The opinion in New York II further
clarifies this portion of the 3MMaplewood analysis, which remains
EPA’s most complete statement of the
principles regarding grouping
nominally-separate changes. As the
Court observed, ‘‘[t]he modifier ‘any’
cannot bring an activity that is never
considered a ‘physical change’ within
the ambit of NSR.’’ 443 F.3d at 887–888.
Therefore, an important limiting factor
in analyzing indicia of whether
nominally-separate changes should be
grouped into an aggregated, single
change is whether the grouping would
be under one of the ordinary meanings
of physical change or change in the
method of operation of a source.
If ‘‘substantially related’’ would omit
an ordinary, common meaning of
physical change that would bring an
emission-increasing project under
review, then the definition would
eliminate a type of physical change that
Congress intended to cover (i.e., the
change that consists of the group of
nominally-separate changes that
comprise a project but do not qualify as
‘‘substantially related’’). In effect, the
interpretation in the NSR Aggregation
Amendments is unreasonable because it
would create a carve-out from the scope
of the statutory definition of
modification.
It is our view that New York II
requires EPA to aggregate any group of
small changes that are sufficiently
related to ‘‘fit[] within one of the
ordinary meanings of ‘physical
change.’ ’’ We agree with the contention
that, to the extent that our ‘‘substantially
related’’ interpretation would exclude
meanings that fit within a reasonable
understanding of the ordinary meaning
of ‘‘any physical change,’’ the
interpretation in the NSR Aggregation
Amendments would impermissibly
narrow the scope of CAA section
111(a)(4). We seek comment on our
analysis.
We specifically invite comment on
the following questions. Do we have the
11 We do not believe the 3M-Maplewood letter
relies solely on this portion of its analysis.
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authority to aggregate nominallyseparate changes that ‘‘fit within one of
the ordinary meanings’’ of a single
physical or operational change when
they are viewed in the context of the
source? Is New York II relevant to the
question of whether we aggregate? Are
there ‘‘ordinary meanings’’ of physical or
operational change that do not fit within
‘‘substantially related’’ as we describe it
in the NSR Aggregation Amendments?
Do we have the authority to exclude
these meanings in light of the New York
II language?
In one respect, the aggregation of
nominally-separate changes that are
‘‘substantially related’’ appears to be
distinguishable from the legal error
underlying the rule at issue in New York
II, the ‘‘Equipment Replacement
Provision’’ or ‘‘ERP’’. In the ERP, we
claimed that the excluded activities
(e.g., replacements that were
functionally equivalent and less than 20
percent of the replacement cost) were
not physical changes as meant by the
statute. In the NSR Aggregation
Amendments, we recognize that a
nominally-separate physical or
operational change is a change by itself
and declare it not to be part of a ‘‘larger
change’’ 12 that also meets a common
understanding of a single ‘‘change.’’ To
the extent that one event could be a part
of either a change that is smaller or a
change that is larger, one may argue that
it is ambiguous as to which meaning of
change should apply.
We are not persuaded that the same
event possibly being part of more than
one change is an ambiguity that would
allow us to exclude the event from CAA
section 111(a)(4). The New York II
decision requires that, when choosing
among meanings of ‘‘change’’ in various
contexts, we must choose a meaning
that brings the emission-increasing
change into the potential scope of the
modification definition. Therefore, we
do not consider the potential for a
nominally-separate change to be either a
change by itself or a change that is part
of a larger change to be an ambiguity
that would allow us to select the less
inclusive meaning. Nevertheless, were a
reviewing court to find that there is
some ambiguity in the statute as it
applies to the coverage of nominallyseparate changes, we believe there may
be policy concerns that would warrant
revocation of the NSR Aggregation
Amendments.
12 i.e.,
a subset of another physical change or
change in the method of operation.
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3. Questioning the Need for a Policy
Change
An objection raised in NRDC’s
petition is that the EPA’s 2006 proposal
on Aggregation failed to identify any
actual problems or inconsistencies with
longstanding aggregation policy as
applied and explained in the 3M
Maplewood letter. While the issue of
whether the historic policy on project
aggregation had problems was raised by
our proposed rule, we did not request
comment on the various factors we
historically applied. Given that we now
view the state of the record differently,
we are taking this opportunity to request
comment on the need for a change in
policy.
The impetus for developing the NSR
Aggregation Amendments emerged from
a study conducted by EPA in 2001 on
the impact of NSR regulations on
investment in new utility and refinery
generation. This EPA study took input
from a range of stakeholders and
resulted in a report to the President in
2002 that included a suite of
recommendations for how to change the
NSR rules to improve the effectiveness
of the program. One of the
recommendations was for EPA to make
clarifying changes to the approach used
for aggregating projects.
However, in reviewing the record for
the NSR Aggregation Amendments, we
find that the only factual support for the
contention that our historic approach
caused confusion was anecdotal. The
parties supporting a change in policy
failed to provide us with any
characterization of the overall level of
uncertainty or other problems resulting
from the existing policy on aggregation.
Furthermore, through our Aggregation
proposal in 2006, we received
countervailing testimony from
permitting agencies and other
stakeholders that contended that there
was little confusion in the application of
our aggregation policy. For example, the
State of New Mexico wrote that ‘‘* * *
the current common sense approach of
looking at the timing, scope, and
interrelationship(s) of projects in
determining the occurrence of
aggregation is more straightforward than
to narrowly evaluate the validity of
independent economic justification
* * * or technical dependence of
various projects.’’ 13 We also heard from
a local reviewing authority in Ohio, who
recommended that ‘‘* * * EPA propose
a test that more accurately represents
current permitting authority practice
with regard to evaluating major NSR
13 Richard Goodyear, State of New Mexico
Environment Department, EPA–HQ–OAR–2003–
0064–0055.1.
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applicability and aggregation.’’ 14
Finally, the National Association of
Clean Air Agencies stated that the
proposal left ‘‘* * * greater uncertainty
than the previous, reasonably welldeveloped policy.’’ 15 We note that these
comments were made in the context of
a proposed rule based on technical and
economic dependence, not
‘‘substantially related,’’ but nevertheless
illustrate a basic comfort level with the
current practice.
We request comment on whether
there was a bona fide need for added
clarity over and above what the old
aggregation policy provided. If clarity
was lacking, we further solicit comment
on whether the NSR Aggregation
Amendments achieved added clarity.
We also note that it has been our
experience that the few applicability
determinations we have issued where
aggregation was the central issue have
not been contested on appeal. The
absence of contested applicability
determinations tends to support a belief
that there was not significant confusion
or controversy with our historic policy.
Through this reconsideration, we
specifically request comment from
reviewing authorities on the frequency
of disputes with other parties over their
aggregation decisions, such as appeals
of applicability determinations where
this has been an issue, adverse
comments in permitting proceedings, or
having to brief the issue in litigation.
4. State Plan Adoption
As noted above, the NSR Aggregation
Amendments did not include
amendatory text for the Code of Federal
Registers (CFR). We agree with NRDC’s
assertion that the state and local
implementation requirements of the
NSR Aggregation Amendments are
unclear. The question of whether a SIP
amendment is required when the CFR
remains unchanged is likely to cause
confusion for reviewing authorities and
other stakeholders. We view these
difficulties as clear support for the need
to have the rule not be effective until the
completion of our reconsideration
proceeding. We also view it as added
support for our preferred position in
this notice, which is to revoke the NSR
Aggregation Amendments, as discussed
in greater detail in the next section of
this notice.
In section III.3.a of this notice, we ask
for comment on whether the existing
NSR regulatory text can support the new
interpretation provided by the NSR
14 John A. Paul, Regional Air Pollution Control
Agency, EPA–HQ–OAR–2003–0064–0089.1.
15 Bill O’Sullivan and John A. Paul, National
Association of Clean Air Agencies, EPA–HQ–OAR–
2003–0064–0102.1.
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Aggregation Amendments if the rule
remains in effect after this
reconsideration proceeding. Apart from
this important question, we are also
taking comment on when and how
reviewing authorities with EPAapproved plans in 40 CFR part 51.166
can implement the new policy
interpretation given that there are no
CFR changes to use as a basis for
drafting amendments to their state
plans.
In a broader sense, when EPA issues
an interpretive rule, have reviewing
authorities with EPA-approved
implementation programs adopted the
new interpretation in their
implementation plans? Or have these
agencies not required a plan amendment
and immediately applied the new
interpretation? If a plan revision was
required, what was the proper
mechanism for State adoption for an
interpretive rule where there is no
change to the CFR? We solicit comment
on all of these questions.
5. Proposal To Revoke Rule
As part of NRDC’s petition requesting
reconsideration of the Aggregation
Amendments, NRDC further asked EPA
to ‘‘withdraw and abandon the final
rule.’’ While rare, the Administrator has
in the past withdrawn, or revoked, a
promulgated rule prior to its effective
date. The reasons for such action by the
Administrator are varied, but typically it
is done when a final rule is determined
to be either error prone, confusing,
overly burdensome, or unnecessary,
such that leaving the rule in place
would not improve the program.16
An overarching concern of EPA is that
our original policy goal for developing
the Aggregation Amendments—i.e., to
provide improved clarity in making
aggregation determinations—does not
appear to have been achieved. This
concern is reflected in the petition for
reconsideration, and we believe it has
sufficient merit that we must consider
whether retaining the NSR Aggregation
Amendments is justified. While the rule
may, in some respects, appear clearer
than our past policy, we are not
convinced that it achieved enough
additional clarity to improve the process
of making aggregation assessments by
sources and reviewing authorities. As
noted above, our reexamination of the
record also leads us to believe that the
16 See, e.g., ‘‘Withdrawal of Revisions to the Water
Quality Planning and Management Regulation and
Revisions to the National Pollutant Discharge
Elimination System Program in Support of
Revisions to the Water Quality Planning and
Management Regulation’’ proposed Dec. 27, 2002
(67 FR 79020) and finalized Mar. 19, 2003 (68 FR
13608).
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apparent need for additional clarity
with the aggregation policy may have
been overstated. Furthermore, as
discussed above, the rule introduces
new ambiguities, particularly with
respect to implementation, that may
further reduce its effectiveness.
Balancing this against the additional
issues raised with respect to the legal
and implementation aspects of the final
rule, as well as our concern of possible
under-inclusiveness of the final rule
(i.e., the chance that certain projects that
should be aggregated would avoid
aggregation under the approach from the
NSR Aggregation Amendments), we
believe that the prior agency policy
may, on balance, provide a more
reasonable interpretation than the
policy interpretation contained in the
final rule. We are therefore proposing as
our preferred option to revoke the final
rule. If we ultimately decide through
reconsideration to revoke the NSR
Aggregation Amendments, we believe
we should restore the past policy for
making case-by-case aggregation
determinations.
We specifically solicit comment on
the legal concerns and possible underinclusiveness with the final rule. As
noted above, comments received on our
proposal from various reviewing
authorities show some support for
retaining the pre-existing aggregation
factors. Thus, we also request comment
on whether the old policy framework for
aggregating nominally-separate changes
is adequate if the NSR Aggregation
Amendments is revoked. Has the
decision in New York II helped to
improve the understanding of the past
policy direction in 3M-Maplewood and
other relevant memoranda?
6. Proposal To Extend Effective Date
As noted, the effective date of the
NSR Aggregation Amendments is May
18, 2010. This scheduled date was
shifted from the original effective date
to allow time for the Agency to conduct
a full reconsideration of the final rule.
We are concerned now, however, that
our reconsideration rulemaking
schedule will not meet the revised
effective date. Furthermore, we still
have concerns, as noted above, with the
final rule becoming effective prior to
completion of our reconsideration
proceeding. Recognizing this, we are
proposing additional time that would
enable us to fully evaluate comments on
issues that are in question and to
complete any revisions of the rule that
become necessary as a result of the
reconsideration process, without the
concern of the rule prematurely
becoming effective.
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19573
Therefore, we propose to delay the
effective date of the NSR Aggregation
Amendments, published in the Federal
Register on January 15, 2009 (74 FR
2376), until November 18, 2010. This
delay would be for an additional 6
months, which we believe would
provide a reasonable period of time to
complete action on the reconsideration.
We solicit comment on a 6-month delay
of the effectiveness of the final rule, and
we also solicit comment on a longer
delay (e.g., 9 or 12 months).
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order (EO) 12866
(58 FR 51735, October 4, 1993), this
action is a ‘‘significant regulatory action’’
because it raises novel legal or policy
issues. Accordingly, EPA submitted this
action to the Office of Management and
Budget (OMB) for review under EO
12866 and any changes made in
response to OMB recommendations
have been documented in the docket for
this action.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. We are
not proposing any new paperwork
requirements (e.g., monitoring,
reporting, recordkeeping) as part of this
proposed action. This action simply
solicits comment on a number of legal
and policy issues raised in a petition for
reconsideration on the NSR Aggregation
Amendments, and proposes an
additional extension of the stay of the
rule.
However, the OMB has previously
approved the information collection
requirements contained in the existing
regulations (40 CFR parts 51 and 52)
under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
and has been assigned OMB control
number 2060–0003. The OMB control
numbers for EPA’s regulations in 40
CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
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 or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
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For purposes of assessing the impacts
of this proposal on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of this proposed rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This proposed rule will not impose any
new requirements on small entities. We
have determined that small businesses
will not incur any adverse impacts
because no costs were associated with
the NSR Aggregation Amendments, and
this proposed reconsideration of that
rule simply requests comment on a
variety of issues, none of which would
create any new requirements or
burdens. Therefore, no costs are
associated with this proposed
amendment.
We continue to be interested in the
potential impacts of the proposed rule
on small entities and welcome
comments on issues related to such
impacts.
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D. Unfunded Mandates Reform Act
This action does not contain a federal
mandate under the provisions of Title II
of the Unfunded Mandates Reform Act
of 1995 (‘‘URMA’’), 2 U.S.C. 1531–1538
for state, local, and tribal governments
or the private sector. This action simply
solicits comment on a number of issues
raised in a petition for reconsideration
on the NSR Aggregation Amendments,
and proposes to revoke the rule.
Therefore, this action is not subject to
the requirements of sections 202 or 205
of UMRA.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on 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
simply solicits comment on issues
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raised in NRDC’s petition for
reconsideration on the NSR Aggregation
Amendments, and proposes to revoke
the rule. Thus, Executive Order 13132
does not apply to this proposed rule.
In the spirit of Executive Order 13132,
and consistent with EPA policy to
promote communications between EPA
and state and local governments, EPA
specifically solicits comment on this
proposed rule from state and local
officials.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000.) This action will not impose any
new obligations or enforceable duties on
tribal governments.
EPA specifically solicits additional
comment on this proposed action from
tribal officials.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This action is not subject to EO 13045
(62 FR 19885), April 23, 1997) because
the Agency does not believe the
environmental health or safety risks
addressed by this action present a
disproportionate risk to children. We do
not believe this action creates any
environmental health or safety risks.
The public is invited to submit
comments or identify peer-reviewed
studies and data that assess effects of
early life exposure.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant energy
action’’ as defined under Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001) because it is
not likely to have a significant adverse
effect on the supply, distribution, or use
of energy. This action will not create
any new requirements for sources in the
energy supply, distribution, or use
sectors.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
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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 proposed rulemaking does not
involve technical standards. Therefore,
EPA is not considering the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 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 United States.
EPA has determined that this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because any impacts that it will have
will be global in nature and will not
affect local communities or populations
in a manner that adversely affects the
level of protection provided to human
health or the environment.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(E) and
307(d)(1)(V) of the CAA, the
Administrator determines that this
action is subject to the provisions of
section 307(d). Section 307(d)(1)(V)
provides that the provisions of section
307(d) apply to ‘‘such other actions as
the Administrator may determine.’’
V. Statutory Authority
The statutory authority for this action
is provided by section 301(a) of the CAA
as amended (42 U.S.C. 7601(a)). This
notice is also subject to section 307(d)
of the CAA (42 U.S.C. 7407(d)).
List of Subjects in 40 CFR Parts 51
and 52
Administrative practices and
procedures, Air pollution control,
Environmental protection,
E:\FR\FM\15APP1.SGM
15APP1
Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Proposed Rules
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section below for
more information).
FOR FURTHER INFORMATION CONTACT: Jim
Bartel, Field Supervisor, U.S. Fish and
Wildlife Service, Carlsbad Fish and
Wildlife Office, 6010 Hidden Valley
Road, Suite 101, Carlsbad, CA 92011;
telephone (760) 431–9440; facsimile
(760) 431–5901. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at (800) 877–8339.
SUPPLEMENTARY INFORMATION:
Intergovernmental relations,
Aggregation.
Dated: March 29, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010–7534 Filed 4–14–10; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2009–0038]
[92210–1117–0000–B4]
RIN 1018–AW22
Endangered and Threatened Wildlife
and Plants; Revised Critical Habitat for
Navarretia fossalis (Spreading
Navarretia)
erowe on DSK5CLS3C1PROD with PROPOSALS
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
comment period.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the public comment period
on our June 10, 2009, proposed revised
designation of critical habitat for
Navarretia fossalis (spreading
navarretia). We also announce the
availability of a draft economic analysis
(DEA); revisions to proposed critical
habitat, including proposed revisions to
eight subunits based on the previous
public comment period; and an
amended required determinations
section of the proposal. We are
reopening the comment period for an
additional 30 days to allow all
interested parties an opportunity to
comment on all of the above. If you
submitted comments previously, you do
not need to resubmit them because we
have already incorporated them into the
public record and will fully consider
them in our final determination.
DATES: We will consider public
comments received on or before May 17,
2010. Any comments that are received
after the closing date may not be
considered in the final decision on this
action.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments
on Docket No. FWS-R8-ES-2009-0038.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R8–
ES–2009–0038; Division of Policy and
Directives Management; U.S. Fish and
VerDate Nov<24>2008
15:01 Apr 14, 2010
Jkt 220001
Public Comments
We intend that any final action
resulting from the proposed rule is
based on the best scientific data
available and will be accurate and as
effective as possible. Therefore, we
request comments or information from
other concerned government agencies,
the scientific community, industry, or
any other interested parties during this
reopened comment period on our
proposed rule to revise critical habitat
for Navarretia fossalis (spreading
navarretia), which we published in the
Federal Register on June 10, 2009 (74
FR 27588), including the changes to
proposed critical habitat in Subunits
1A, 1B, 3B, 5C, 5I, 6A, 6B, and 6C, the
DEA of the proposed revised
designation, and the amended required
determinations provided in this
document. We are particularly
interested in comments concerning:
(1) The reasons why we should or
should not revise the critical habitat
under section 4 of the Endangered
Species Act of 1973, as amended (Act)
(16 U.S.C. 1531 et seq.), including
whether there are threats to Navarretia
fossalis from human activity, the type of
human activity causing these threats,
and whether the benefit of designation
would outweigh any threats to the
species caused by the designation, such
that the designation of critical habitat is
prudent.
(2) Specific information on:
• The current amount and distribution
of Navarretia fossalis habitat.
• Areas that provide habitat for N.
fossalis that we did not discuss in our
original proposed revised critical habitat
rule or in this reopening of the comment
period.
• Areas containing the physical and
biological features essential to the
conservation of N. fossalis that we
should include in the revised critical
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
19575
habitat designation and why. Include
information on the distribution of these
essential features and what special
management considerations or
protections may be required to maintain
or enhance them.
• Areas proposed as critical habitat
that do not contain the physical and
biological features essential for the
conservation of the species that should
not be designated as critical habitat.
• Areas not occupied at the time of
listing that are essential to the
conservation of the species and why.
(3) Land use designations and current
or planned activities in the areas
occupied by the species, and their
possible impacts on proposed critical
habitat;
(4) How the proposed revised critical
habitat boundaries could be refined to
more closely circumscribe landscapes
identified as containing the physical
and biological features essential to the
conservation of the species.
(5) Any foreseeable economic,
national security, or other relevant
impacts that may result from
designating particular areas as critical
habitat, and, in particular, any impacts
to small entities (e.g., small businesses
or small governments), and the benefits
of including or excluding areas from the
proposed revised designation that
exhibit these impacts.
(6) Special management
considerations or protections that the
essential physical and biological
features identified in the proposed
critical habitat may require.
(7) Information on the extent to which
the description of potential economic
impacts in the DEA is complete and
accurate.
(8) Whether any specific subunits
being proposed as critical habitat should
be excluded under section 4(b)(2) of the
Act, and whether the benefits of
potentially excluding any particular
area outweigh the benefits of including
that area as critical habitat.
(9) Our consideration to exclude the
portion of Subunit 4E that we are
proposing as critical habitat within the
Ramona Grasslands Preserve under
section 4(b)(2) of the Act, and whether
such exclusion is appropriate and why;
(10) The likelihood of adverse social
reactions to the designation of critical
habitat, and how the consequences of
such reactions, if they occur, would
relate to the conservation of the species
and regulatory benefits of the proposed
revised critical habitat designation.
(11) Information on the extent to
which the description of potential
economic impacts in the DEA is
complete and accurate, and specifically:
E:\FR\FM\15APP1.SGM
15APP1
Agencies
[Federal Register Volume 75, Number 72 (Thursday, April 15, 2010)]
[Proposed Rules]
[Pages 19567-19575]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7534]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2003-0064; FRL-9133-7]
RIN 2060-AP80
Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NSR): Aggregation; Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to a proceeding for reconsideration, the EPA requests
comment on a Clean Air Act (CAA) rule, the New Source Review (NSR)
Aggregation Amendments, which was promulgated on January 15, 2009. The
NSR Aggregation Amendments established a new interpretation of the
existing NSR rules governing the modification of major sources by
requiring sources and permitting authorities to combine emissions from
nominally-separate activities at a major stationary source only when
the activities are ``substantially related.'' This proposed
reconsideration is in response to a petition from the Natural Resources
Defense Council (NRDC) received on January 30, 2009. EPA requests
public comment on all issues included in NRDC's petition. In light of
the legal and policy issues raised in the petition and in our own
review of the rule, EPA's preferred option is to revoke the NSR
Aggregation Amendments. EPA is also proposing to extend the effective
date of the stay by an additional 6 months, and soliciting comment on a
longer extension of the stay.
DATES: Comments. Comments must be received on or before May 17, 2010.
Public Hearing. If anyone contacts EPA requesting the opportunity
to speak at a public hearing concerning the proposed regulation by
April 26, 2010, EPA will hold a public hearing on April 30, 2010. If a
hearing is held, the record for the hearing will remain open until June
1, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0064, by one of the following methods:
https://www.regulations.gov. Follow the online instructions
for submitting comments.
E-mail: a-and-r-docket@epa.gov.
Mail: Air and Radiation Docket, Environmental Protection
Agency, Mail code 6102T, 1200 Pennsylvania Avenue, NW., Washington, DC
20460. Please include a total of two copies.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 20460. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to the applicable docket. EPA's
policy is that all comments received will be included in the public
docket without change and may be made available online at https://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through https://www.regulations.gov or e-
mail. The https://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through https://www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: All documents in the docket are listed in the https://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, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through https://www.regulations.gov or in hard copy at the EPA Docket Center, Public
Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC, 20460. 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) 566-1742, and the
telephone number for the Air Docket is (202) 566-1744.
Public Hearing. If a public hearing is held, it will be held in
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Mr. David Svendsgaard, Air Quality
Policy Division (C504-03), U.S. Environmental Protection Agency,
Research Triangle Park, NC 27711, telephone number: (919) 541-2380; fax
number: (919) 541-5509, e-mail address: svendsgaard.dave@epa.gov.
To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina 27711; telephone number (919) 541-0641;
fax number (919) 541-5509; e-mail address: long.pam@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this sction spply to me?
Entities potentially affected by this action include sources in all
industry groups and state, local, and tribal governments.
B. How is this preamble organized?
The preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. How is this preamble organized?
II. Overview
A. What is ``Aggregation''?
B. What events have led to this action?
III. This Action
A. What is the standard for reconsideration?
B. What issues are being reconsidered?
C. Key Issues Under Reconsideration
1. Lack of Adequate Opportunity for Notice and Comment on the
Adopted Rule
2. Rule may be Inconsistent with a Court of Appeals Decision for
Previous NSR Rule
a. Background for Our Historic Approach
b. Our Explanation of Our Authority in the NSR Aggregation
Amendments
c. The CAA Requires Aggregation of Nominally-Separate Changes
When They Collectively can be Seen as One Change
3. Questioning the Need for a Policy Change
4. State Plan Adoption
5. Proposal to Revoke Rule
6. Proposal to Extend Effective Date
[[Page 19568]]
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
K. Determination Under Section 307(d)
V. Statutory Authority
II. Overview
A. What is ``Aggregation''?
When undergoing a physical or operational change, a source
determines major NSR applicability through a two-step analysis that
first considers whether the increased emissions from a particular
proposed change alone are significant, followed by a calculation of the
change's net emissions increase considering all contemporaneous
increases and decreases at the source (i.e., source-wide netting
calculation) to determine if a major modification has occurred. See,
for example, 40 CFR 52.21(b)(2)(i). The term ``aggregation'' comes into
play in the first step (Step 1), and describes the process of grouping
together multiple, nominally-separate but related physical changes or
changes in the method of operation (``nominally-separate changes'')
into one physical or operational change, or ``project.'' The emission
increases of the nominally-separate but related changes must be
combined in Step 1 for purposes of determining whether a significant
emissions increase has occurred from the project. See, for example, 40
CFR 52.21(b)(40). When undertaking multiple nominally-separate changes,
the source must consider whether NSR applicability should be determined
collectively (i.e., ``aggregated'') or whether the emissions from each
of these changes should separately undergo a Step 1 analysis.\1\
---------------------------------------------------------------------------
\1\ Even if activities are determined to be separate and subject
to an individual Step 1 analysis, the emission increases and
decreases may still be included together in the source-wide netting
calculation if the projects occur within a contemporaneous period.
---------------------------------------------------------------------------
Neither the CAA nor current EPA rules specifically address the
basis upon which to aggregate nominally-separate changes for the
purpose of making NSR applicability determinations. Instead, our \2\
aggregation policy developed over time through statutory and regulatory
interpretation and applicability determinations in response to a need
to deter sources from attempting to expedite construction by permitting
several changes separately as minor modifications. When related changes
are evaluated separately, the source may circumvent the purpose of the
NSR program by showing a less than significant emission increase for
Step 1 of the applicability analysis, that could result in avoiding
major NSR permitting requirements.\3\ This, in turn, could result in
increases of emissions of air pollutants from the facility that would
be higher than the increases would be had the changes been subject to
NSR control requirements. The associated emissions increases could
endanger the air quality health standard and adversely affect public
health.
---------------------------------------------------------------------------
\2\ In this notice, the terms ``we,'' ``us,'' and ``our'' refer
to the EPA.
\3\ Of course, if a source has a significant increase in
emissions from a change (or aggregated changes), it is not
necessarily subject to NSR; rather, not until the source also has a
``significant net emission increase'' would it be subject to NSR
permitting requirements.
---------------------------------------------------------------------------
Under our longstanding aggregation policy, we evaluate all relevant
and objective criteria specific to a case in determining if multiple
changes at a source should be aggregated as a single project for NSR
purposes. See section III.C.2.a of this notice. Our policy aims to
ensure the proper permitting of modifications that involve multiple
physical and/or operational changes.
B. What events have led to this action?
On January 15, 2009, we issued a final rule that changed our
interpretation of the PSD and nonattainment NSR regulations relating to
the definition of ``modification'' in the CAA 111(a)(4). The new rule
addressed when a source must aggregate emissions from nominally-
separate changes for the purpose of determining whether they are a
single project resulting in a significant emission increase. The final
rule retained the prior rule language relevant to aggregation, but
interpreted that rule text to mean that sources and permitting
authorities should combine emissions only when nominally-separate
changes are ``substantially related.'' We described in the final rule
preamble the factors that may be considered when evaluating whether
changes are substantially related, and we specifically stated that two
nominally-separate changes are not substantially related if they are
only related to the extent that they both support the plant's overall
basic purpose. At the same time, we adopted a rebuttable presumption
that nominally-separate changes at a source that occur three or more
years apart are presumed to not be substantially related. Collectively,
this rulemaking is known as the ``NSR Aggregation Amendments.'' For
further information on the NSR Aggregation Amendments, see 74 FR 2376
(January 15, 2009).
On January 30, 2009, NRDC submitted a petition for reconsideration
of the NSR Aggregation Amendments as provided for in CAA section
307(d)(7)(B).\4\ Under that CAA provision, the Administrator may
convene a reconsideration proceeding if the petitioner raises an
objection to a rule that was impracticable to raise during the comment
period or if the grounds for the objection arose after the comment
period. In either case, the objection must be of central relevance to
the outcome of the rule.
---------------------------------------------------------------------------
\4\ John Walke, Natural Resources Defense Council, EPA-HQ-OAR-
2003-0064-0116.1.
---------------------------------------------------------------------------
On February 13, 2009, we announced the convening of a
reconsideration proceeding in response to the NRDC petition. See 74 FR
7193. In order to allow for completion of the reconsideration prior to
the NSR Aggregation Amendments becoming effective, we also announced a
90-day administrative stay of the rule. See 74 FR 7284 (Feb. 13, 2009).
We subsequently completed a rulemaking further delaying the effective
date until May 18, 2010. See 74 FR 22693 (May 14, 2009). The extensions
enable us to take comment on issues that are in question and complete
any revisions of the rule that become necessary as a result of the
reconsideration process.
III. This Action
A. What is the standard for reconsideration?
As noted above, pursuant to CAA 307(d)(7)(B) of the CAA, an
individual can petition an agency to reconsider a final rule issued
under CAA 307(d)(1) if the individual can show that:
It was impracticable to raise the objection during the
public comment period on the proposed rule, or the grounds for the
objection arose after the public comment period; and
The objection is centrally relevant to the outcome of the
rule.
As to the first procedural criterion for reconsideration, a
petitioner must show why the issue could not have been presented during
the comment period, either because it was impracticable to raise the
issue during that time or because the grounds for the issue arose after
the period for public comment (but within 60 days of publication of the
final action). Thus, CAA 307(d)(7)(B) does not provide a forum to
request EPA
[[Page 19569]]
to reconsider issues that actually were raised, or could have been
raised, prior to promulgation of the final rule.
An agency can deny the reconsideration of issues when they fail to
meet the procedural test for reconsideration under CAA 307(d)(7)(B).
If, however, there are adequate grounds for the objections raised in
this petition, the EPA Administrator must ``* * *convene a proceeding
for reconsideration of the rule and provide the same procedural rights
as would have been afforded had the information been available at the
time the rule was proposed.'' CAA 307(d)(7)(B). In this case, the final
rule adopted interpretations that were not described in the proposal
and on which the public did not have an opportunity to offer comment,
as described more specifically below.
B. What issues are being reconsidered?
The basis for this reconsideration proceeding is NRDC's petition of
January 30, 2009, in which NRDC requested reconsideration of many
aspects of the January 15, 2009, final rule. The reader is directed to
the petition for an exact explanation of each objection raised by NRDC.
See Docket EPA-HQ-OAR-2003-0064-0116.1. In summary, NRDC's main points
of concern include:
The NSR Aggregation Amendments are inconsistent with the
DC Circuit Court ruling on the NSR ''Equipment Replacement Provision,''
by creating an illegal exclusion to the broad ``any physical change''
provision in the CAA.
The EPA failed to identify any actual problems or
inconsistencies with longstanding policy.
The 2006 proposal sought to clarify aggregation rules
through proposing new rule text, but the 2009 final rule reinterpreted
the existing rule text and was described as a change in policy.
The term ``substantially related'' is vague and undefined,
did not appear in the proposal, retreats from the factors used in
previous aggregation determinations by EPA (e.g., adopting the 3-year
timing presumption against aggregation), and eliminates consideration
of EPA's policy on circumvention by failure to consider a company's
intent.
The final rule is silent, and therefore confusing, on
whether States must implement the new rule in their own programs.
The EPA violated relevant executive orders through failure
to adequately consult with states during the development of the rule.
Through this notice, we are taking comment on a broad range of
legal and policy issues related to the NSR Aggregation Amendments. We
also acknowledge an interdependence among several objections raised in
NRDC's petition, such that granting reconsideration on one issue that
meets the standard for reconsideration may warrant taking comment on a
second issue that may, on its own, not meet the standard for
reconsideration. However, the basis for the second issue is at stake
depending on what comments are received on the first issue.
For example, under CAA 307(d)(3)(C), EPA is required to present for
public comment ``the major legal interpretations and policy
considerations underlying the proposed rule.'' We acknowledge through
this reconsideration proceeding that portions of the legal basis for
the NSR Aggregation Amendments did not undergo comment solicitation,
and it is necessary to allow the public an opportunity to comment fully
on the basic authority for the rule. However, as is the case with many
rules, the statutory basis of this rule provides the underpinning for
most every aspect of the rule, and could call into question the
legitimacy of other aspects of the rule. Therefore, in addition to
granting reconsideration on the legal basis for the rule, we are also
taking comment on other aspects of the final rule that are dependent
upon a sound legal basis. For instance, although we requested comment
on a 3-year presumption against aggregation through our 2006 proposal,
in light of the broad legal issue that is currently under
reconsideration, we believe it is justified to open for additional
comment the issue of having a presumption against aggregation because
such a presumption would be necessarily dependent on, and an outgrowth
of, the legal basis of our rule.
Moreover, a few of the issues raised in the NRDC petition
demonstrate that there are fundamental components of the final rule
that elicit confusion, such as whether states with approved
implementation plans must adopt the new rule and whether their State
Implementation Plans (SIPs) must be amended. Since the aim of the rule
was to reduce, not promote, confusion with regard to project
aggregation, we are particularly concerned with this comment from the
petitioner, and it is one of the primary reasons for delaying the
effective date of the rule while we reconsider issues raised in the
petition.
For these reasons, we invite comment on all issues raised by the
petitioner. In the sections below, we specifically describe several key
issues on which we seek comment.
C. Key Issues Under Reconsideration
1. Lack of Adequate Opportunity for Notice and Comment on the Adopted
Rule
As noted above, NRDC identifies as grounds for reconsideration
several issues related to the adoption and implementation of the
``substantially related'' test for aggregating nominally-separate
changes. The proposed rule did not mention the ``substantially
related'' test adopted in the final rule.\5\ Additionally, the proposed
rule offered new regulatory text to clarify the criteria for
aggregation, while the final rule retains the existing text. Our
proposed rule did not discuss the possibility of changing the
interpretation of the existing text.
---------------------------------------------------------------------------
\5\ Furthermore, subsumed within the ``substantially related
test'' is another feature of the final rule that was not introduced
as a possible change in policy at proposal--i.e., to not aggregate
projects when their sole common ground is that they each support the
plant's overall basic purpose.
---------------------------------------------------------------------------
A commenter would not have been on notice of the possibility that
we would adopt the ``substantially related'' test without amending the
rule text, nor would a commenter have been on notice of the need to
comment on whether the existing text was susceptible to this
interpretation. The issue of adopting this rule in the form and manner
we did is an issue that arose after the comment period and is of
central relevance to the rulemaking proceeding.
In soliciting comment on the option of creating time-based
presumptions regarding aggregation, we did not raise the issue of
whether the existing regulatory text could support the creation of this
presumption. We ``acknowledge[d] that the establishment of a
presumption* * * would go beyond the codification of the status quo.''
See 71 FR 54248. Therefore, we did not characterize a time-based
presumption as a clarification. We recognized it could only apply
prospectively. Nevertheless, the final rule announced the 3-year
presumption against aggregation as an interpretation of the regulatory
text despite the regulation's silence on this issue.
In context, commenters could not have been aware that we were
suggesting the presumption was an interpretation of the existing
regulatory text rather than a proposal to add a presumption to the
text. Therefore, commenters did not have an adequate opportunity to
comment on whether the existing regulatory text could be interpreted to
have a time-based presumption.
We solicit comment on the change in approach from the pre-rule
policy on
[[Page 19570]]
aggregation to the ``substantially related'' test set forth in the
preamble to the January 15, 2009, final rule. We specifically request
comment on any rule changes that may be needed to implement the new
test. For example, if we were to retain the ``substantially related''
test, then must we amend the regulatory text for the definition of
``project'' to say that nominally-separate changes must be aggregated
into a project if they are substantially related? Must we also add new
regulatory text in order to establish a time-based presumption for or
against aggregation? We also solicit comment on whether we would need
new or revised rule language to adopt a time-based presumption against
aggregation.
Furthermore, we specifically request comment on whether
``substantially related'' is the proper measurement to apply when
determining whether to aggregate projects. Or does it, as the
petitioner has expressed, add confusion for sources and permitting
authorities trying to apply the test? Is there another benchmark that
would be more sensible to use to determine when the emissions of
nominally-separate changes at a source should be aggregated for
evaluating NSR applicability? If we decide to retain the substantially
related test or revert to our former test, is the 3-year presumption
against aggregation appropriate?
2. Rule May Be Inconsistent With a Court of Appeals Decision for
Previous NSR Rule
The NRDC petition identifies our interpretation of the controlling
statutory term, ``modification,'' and a key case discussing that
definition as issues that were impractical to raise during the comment
period and of central relevance to the rule. While NRDC and other
commenters identified these matters as being at issue in their
comments, we did not include an explanation in the proposed rule of how
the EPA aggregation interpretation was consistent with the statute and
the court decision. In a sense, the rulemaking process required by CAA
307(d) was inverted: rather than the EPA providing a ``statement of
basis [summarizing] the major legal interpretations* * *underlying the
proposed rule,'' as required by CAA 307(d)(3)(C), the commenters
provided their views of the law, and we then provided a legal basis in
the final rule and in the response-to-comment document. Moreover, the
rulemaking did not simply adopt a theory that was a logical outgrowth
of the theory or theories suggested in the proposal. The portion of the
proposal discussing aggregation was completely silent on how we
interpreted CAA section 111(a)(4) to authorize aggregation and provided
no analysis of the relevant case law.
Below we set out our understanding of the statute and case law. We
invite comment on our understanding and what we believe would be the
result from that understanding--i.e., the revocation of the NSR
Aggregation Amendments and the reversion to our pre-existing policy on
project aggregation.
a. Background for our Historic Approach
Under both the nonattainment NSR provisions of the CAA as well as
the PSD provisions, a modification of a major stationary source is
treated as construction of a new source subject to permitting.
Modification is a defined term under the statute: ``The term
`modification' means any physical change in, or change in the method of
operation of, a stationary source which increases the amount of any air
pollutant emitted by such source or which results in the emission of
any air pollutant not previously emitted'' (CAA section 111(a)(4)).
This definition requires analyzing whether a physical or operational
change will take (or, post hoc, has taken) place, and whether it
results in an emission increase. As noted above, in situations
involving multiple nominally-separate changes at a source, EPA's
``aggregation'' policy interprets what is the physical or operational
change that must be assessed for an emission increase.
We calculate the emissions increase associated with a physical or
operational change at a major stationary source by reference to de
minimis thresholds (also known as ``significance levels''). From the
earliest days of the NSR program, we recognized that a party seeking to
avoid major source NSR might attempt to break up a single physical or
operational change into nominally-separate changes in order to make the
emission increase associated with each change appear to be less than
significant. See 45 FR 52702 (Aug. 7, 1980). As subsequent case law
confirmed, even a small physical or operational change may satisfy the
first portion of the definition of modification. State of New York v.
EPA, 443 F.3d 880, 890 (DC Cir. 2006), cert. den. 127 S. Ct. 2127
(2007) (New York II); Wisconsin Elec. Power Co. v. Reilly, 893 F.2d
901, 908 (7th Cir. 1990). We recognized that an owner or operator might
apply for multiple minor permits for nominally-separate, small changes
that by themselves result in de minimis emission increases, instead of
obtaining a permit for the collection of changes that, when examined as
a single project, resulted (or would result) in a significant emission
increase.
We issued several letters since the early 1980s explaining that we
may enforce the major source permitting requirements in such cases when
a source ``circumvents'' major source NSR by dividing one change and
its emission increase into nominally-separate physical or operational
changes.\6\ Some of these letters discussed intent to evade NSR, but
focused more on objective factors such as the closeness in the timing
of nominally-separate changes and the integrated planning of these
changes.\7\ In 1993, we issued a letter analyzing a series of minor
permit applications for 3M Company's research and development facility
in Maplewood, Minnesota.\8\ This letter has been widely cited for its
discussion of objective factors that could support a conclusion that
nominally-separate changes should be treated as one project. These
factors include the filing of multiple minor source or minor
modification permits for a single source within a short period of time,
funding information indicating one project, other reporting on consumer
demand and project levels, other statements from the business
indicating one project, EPA's assessment of the economic realities of
the project, as well as the relationship of the changes to the overall
basic purpose of the plant. Subsequently, we have issued additional
letters discussing aggregation at particular plants in certain
circumstances.\9\ Collectively, these
[[Page 19571]]
letters outline an approach where we would look at case-specific facts
and the relationship between nominally-separate changes to determine
whether they were a single project to be assessed for an emission
increase under Step 1 of the NSR applicability test.
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\6\ Memorandum from John Calcagni, Director, Air Quality
Management Division, to William B. Hathaway, Director, Air,
Pesticides, and Toxics Division, EPA Region 6, entitled ``Request
for Clarification of Policy Regarding the `Net Emissions Increase'
'' (Sept. 18, 1989).
\7\ See, e.g., Letter from James Wilburn, Chief, Air Management
Branch, EPA Region 4, to Harold Hodges, Director, Division of Air
Pollution Control, Tennessee Department of Public Health (Aug. 15,
1983); Memorandum from Darryl Tyler, Director, Control Programs
Development Division, EPA Office of Air Quality Planning and
Standards (OAQPS), to David Kee, Director, Air Management Division,
EPA Region 5, entitled ``Applicability of PSD to Portions of Plan
Constructed in Phases Without Permits'' (Oct. 21, 1986); Letter from
Don Clay, Acting Assistant Administrator, EPA Office of Air and
Radiation, to John Boston, Vice President, Wisconsin Electric Power
Company (Feb. 15, 1989).
\8\ Memorandum from John Rasnic, Director, Stationary Source
Compliance Division, OAQPS, to George Czerniak, Chief, Air
Enforcement Branch, EPA Region 5, entitled ``Applicability of New
Source Review Circumvention Guidance to 3M-Maplewood, Minnesota''
(June 17, 1993).
\9\ See, e.g., Letter from Doug Cole, Acting Manager, Federal &
Delegated Air Programs Unit, EPA Region 10, to Grant Cooper et al.,
Frederickson Power L.P. (Oct. 12, 2001); Letter from Gregg Worley,
Chief, Air Permits Section, EPA Region 4, to Heather Abrams, Georgia
Environmental Protection Division (July 5, 2005); Letter from David
Campbell, Chief, Permits & Technical Assessment Branch, EPA Region
3, to Matthew Williams, Pennsylvania Department of Environmental
Protection (Feb. 21, 2007).
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b. Our Explanation of Our Authority in the NSR Aggregation Amendments
The statute itself defines modification in the singular: ``any
physical change in, or change in the method of operation of, a
stationary source'' that increases emissions. Some have argued that we
cannot aggregate or accumulate nominally-separate changes to determine
NSR applicability because they can be viewed as multiple changes.
In response to this argument in comments on the NSR Aggregation
Amendment proposed rule, we cited the recent decision in New York II,
which held that the definition of modification requires ``EPA [to]
apply NSR whenever a source conducts an emission-increasing activity
that fits within one of the ordinary meanings of `physical change.' ''
443 F.3d at 885. Because ``[s]ubstantially related, nominally-separate
changes can be seen as one change when viewed as a whole,'' we viewed
``[a]ggregation of nominally separate changes that are substantially
related as `fit[ting] within one of the ordinary meanings of physical
change.' '' \10\ Therefore, we viewed aggregation as allowed under the
statute and the ``substantially related'' test for aggregation as a
permissible interpretation of the modification definition.
---------------------------------------------------------------------------
\10\ ``Response to Comments Document for the Final Action: PSD
and Nonattainment New Source Review (NSR): Aggregation and Project
Netting'', EPA-HQ-OAR-2003-0064-0111, pg. 8.
---------------------------------------------------------------------------
Having seen EPA's analysis of New York II for the first time in the
response-to-comment document supporting the NSR Aggregation Amendments,
NRDC expressed the view that the foregoing analysis of that case
``utterly misses the point.'' NRDC's petition acknowledges that
aggregation of nominally-separate changes that are substantially
related is one of the ordinary meanings of physical change. However,
NRDC notes that ``aggregation of nominally separate changes that are
not substantially related'' also may be within an ordinary meaning of
physical change, especially when substantially related is defined in
terms of technical or economic interrelationship and dependence. In
NRDC's view, because the statute covers ``any physical change,'' and
the NSR Aggregation Amendments would omit some of these physical
changes from NSR permitting by not aggregating them, the NSR
Aggregation Amendments impermissibly narrowed the expansive reading of
the statute's ``any physical change'' required by New York II. See NRDC
petition at 5-6.
c. The CAA Requires Aggregation of Nominally-Separate Changes When They
Collectively Can Be Seen as One Change
The issue NRDC raises goes to the crux of the NSR Aggregation
Amendments. What must be treated as one physical or operational change
under the definition of ``modification'' in the act is the legal
underpinning for our aggregation policy.
The New York II Court held that we have limited authority to exempt
from NSR those activities that can be considered a single physical
change. Accordingly, ``any physical change'' should encompass any
change that reasonably can be considered an ordinary meaning of the
phrase. As the Court noted, ``[W]hen Congress places the word `any'
before a phrase with several common meanings, the statutory phrase
encompasses each of those meanings; the agency may not pick and choose
among them.'' 443 F.3d at 888. The logic of New York II applies not
only to physical changes but also to changes in the method of operation
of a source.
Much of the emphasis of New York II and other cases has been on
whether we could exclude small changes from being considered potential
modifications as defined in the Act. However, the New York II Court's
reasoning also applies to a rule that would split apart one change into
separate changes in order to limit the applicability of NSR. The Court
concludes, ``[a]lthough the phrase ``physical change'' is susceptible
to multiple meanings, the word ``any'' makes clear that activities
within each of the common meanings of the phrase are subject to NSR
when the activity results in an emission increase.'' 443 F.3d at 890.
The statute prohibits EPA from picking and choosing among meanings of
the phrase ``any physical change * * * or change in the method of
operation'' if it would result in omitting a common meaning that would
subject an emission increase to review.
Historically, EPA has analyzed the question of whether nominally-
separate changes are one change by using a case-by-case review of all
relevant and objective factors that looks for ``indicia,'' or
indicators, of these changes being one common aggregate change. As
noted above, one much-cited example of our analysis of grouping
together nominally-separate changes is appropriate is the ``3M-
Maplewood'' memorandum discussed above and in the notices for the
proposed and final rules. One concern about the 3M-Maplewood analysis
has been that one portion of the analysis suggests that any set of
nominally-separate changes that are consistent with ``the plant's
overall basic purpose'' can be aggregated.\11\
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\11\ We do not believe the 3M-Maplewood letter relies solely on
this portion of its analysis.
---------------------------------------------------------------------------
The opinion in New York II further clarifies this portion of the
3M-Maplewood analysis, which remains EPA's most complete statement of
the principles regarding grouping nominally-separate changes. As the
Court observed, ``[t]he modifier `any' cannot bring an activity that is
never considered a `physical change' within the ambit of NSR.'' 443
F.3d at 887-888. Therefore, an important limiting factor in analyzing
indicia of whether nominally-separate changes should be grouped into an
aggregated, single change is whether the grouping would be under one of
the ordinary meanings of physical change or change in the method of
operation of a source.
If ``substantially related'' would omit an ordinary, common meaning
of physical change that would bring an emission-increasing project
under review, then the definition would eliminate a type of physical
change that Congress intended to cover (i.e., the change that consists
of the group of nominally-separate changes that comprise a project but
do not qualify as ``substantially related''). In effect, the
interpretation in the NSR Aggregation Amendments is unreasonable
because it would create a carve-out from the scope of the statutory
definition of modification.
It is our view that New York II requires EPA to aggregate any group
of small changes that are sufficiently related to ``fit[] within one of
the ordinary meanings of `physical change.' '' We agree with the
contention that, to the extent that our ``substantially related''
interpretation would exclude meanings that fit within a reasonable
understanding of the ordinary meaning of ``any physical change,'' the
interpretation in the NSR Aggregation Amendments would impermissibly
narrow the scope of CAA section 111(a)(4). We seek comment on our
analysis.
We specifically invite comment on the following questions. Do we
have the
[[Page 19572]]
authority to aggregate nominally-separate changes that ``fit within one
of the ordinary meanings'' of a single physical or operational change
when they are viewed in the context of the source? Is New York II
relevant to the question of whether we aggregate? Are there ``ordinary
meanings'' of physical or operational change that do not fit within
``substantially related'' as we describe it in the NSR Aggregation
Amendments? Do we have the authority to exclude these meanings in light
of the New York II language?
In one respect, the aggregation of nominally-separate changes that
are ``substantially related'' appears to be distinguishable from the
legal error underlying the rule at issue in New York II, the
``Equipment Replacement Provision'' or ``ERP''. In the ERP, we claimed
that the excluded activities (e.g., replacements that were functionally
equivalent and less than 20 percent of the replacement cost) were not
physical changes as meant by the statute. In the NSR Aggregation
Amendments, we recognize that a nominally-separate physical or
operational change is a change by itself and declare it not to be part
of a ``larger change'' \12\ that also meets a common understanding of a
single ``change.'' To the extent that one event could be a part of
either a change that is smaller or a change that is larger, one may
argue that it is ambiguous as to which meaning of change should apply.
---------------------------------------------------------------------------
\12\ i.e., a subset of another physical change or change in the
method of operation.
---------------------------------------------------------------------------
We are not persuaded that the same event possibly being part of
more than one change is an ambiguity that would allow us to exclude the
event from CAA section 111(a)(4). The New York II decision requires
that, when choosing among meanings of ``change'' in various contexts,
we must choose a meaning that brings the emission-increasing change
into the potential scope of the modification definition. Therefore, we
do not consider the potential for a nominally-separate change to be
either a change by itself or a change that is part of a larger change
to be an ambiguity that would allow us to select the less inclusive
meaning. Nevertheless, were a reviewing court to find that there is
some ambiguity in the statute as it applies to the coverage of
nominally-separate changes, we believe there may be policy concerns
that would warrant revocation of the NSR Aggregation Amendments.
3. Questioning the Need for a Policy Change
An objection raised in NRDC's petition is that the EPA's 2006
proposal on Aggregation failed to identify any actual problems or
inconsistencies with longstanding aggregation policy as applied and
explained in the 3M Maplewood letter. While the issue of whether the
historic policy on project aggregation had problems was raised by our
proposed rule, we did not request comment on the various factors we
historically applied. Given that we now view the state of the record
differently, we are taking this opportunity to request comment on the
need for a change in policy.
The impetus for developing the NSR Aggregation Amendments emerged
from a study conducted by EPA in 2001 on the impact of NSR regulations
on investment in new utility and refinery generation. This EPA study
took input from a range of stakeholders and resulted in a report to the
President in 2002 that included a suite of recommendations for how to
change the NSR rules to improve the effectiveness of the program. One
of the recommendations was for EPA to make clarifying changes to the
approach used for aggregating projects.
However, in reviewing the record for the NSR Aggregation
Amendments, we find that the only factual support for the contention
that our historic approach caused confusion was anecdotal. The parties
supporting a change in policy failed to provide us with any
characterization of the overall level of uncertainty or other problems
resulting from the existing policy on aggregation. Furthermore, through
our Aggregation proposal in 2006, we received countervailing testimony
from permitting agencies and other stakeholders that contended that
there was little confusion in the application of our aggregation
policy. For example, the State of New Mexico wrote that ``* * * the
current common sense approach of looking at the timing, scope, and
interrelationship(s) of projects in determining the occurrence of
aggregation is more straightforward than to narrowly evaluate the
validity of independent economic justification * * * or technical
dependence of various projects.'' \13\ We also heard from a local
reviewing authority in Ohio, who recommended that ``* * * EPA propose a
test that more accurately represents current permitting authority
practice with regard to evaluating major NSR applicability and
aggregation.'' \14\ Finally, the National Association of Clean Air
Agencies stated that the proposal left ``* * * greater uncertainty than
the previous, reasonably well-developed policy.'' \15\ We note that
these comments were made in the context of a proposed rule based on
technical and economic dependence, not ``substantially related,'' but
nevertheless illustrate a basic comfort level with the current
practice.
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\13\ Richard Goodyear, State of New Mexico Environment
Department, EPA-HQ-OAR-2003-0064-0055.1.
\14\ John A. Paul, Regional Air Pollution Control Agency, EPA-
HQ-OAR-2003-0064-0089.1.
\15\ Bill O'Sullivan and John A. Paul, National Association of
Clean Air Agencies, EPA-HQ-OAR-2003-0064-0102.1.
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We request comment on whether there was a bona fide need for added
clarity over and above what the old aggregation policy provided. If
clarity was lacking, we further solicit comment on whether the NSR
Aggregation Amendments achieved added clarity.
We also note that it has been our experience that the few
applicability determinations we have issued where aggregation was the
central issue have not been contested on appeal. The absence of
contested applicability determinations tends to support a belief that
there was not significant confusion or controversy with our historic
policy. Through this reconsideration, we specifically request comment
from reviewing authorities on the frequency of disputes with other
parties over their aggregation decisions, such as appeals of
applicability determinations where this has been an issue, adverse
comments in permitting proceedings, or having to brief the issue in
litigation.
4. State Plan Adoption
As noted above, the NSR Aggregation Amendments did not include
amendatory text for the Code of Federal Registers (CFR). We agree with
NRDC's assertion that the state and local implementation requirements
of the NSR Aggregation Amendments are unclear. The question of whether
a SIP amendment is required when the CFR remains unchanged is likely to
cause confusion for reviewing authorities and other stakeholders. We
view these difficulties as clear support for the need to have the rule
not be effective until the completion of our reconsideration
proceeding. We also view it as added support for our preferred position
in this notice, which is to revoke the NSR Aggregation Amendments, as
discussed in greater detail in the next section of this notice.
In section III.3.a of this notice, we ask for comment on whether
the existing NSR regulatory text can support the new interpretation
provided by the NSR
[[Page 19573]]
Aggregation Amendments if the rule remains in effect after this
reconsideration proceeding. Apart from this important question, we are
also taking comment on when and how reviewing authorities with EPA-
approved plans in 40 CFR part 51.166 can implement the new policy
interpretation given that there are no CFR changes to use as a basis
for drafting amendments to their state plans.
In a broader sense, when EPA issues an interpretive rule, have
reviewing authorities with EPA-approved implementation programs adopted
the new interpretation in their implementation plans? Or have these
agencies not required a plan amendment and immediately applied the new
interpretation? If a plan revision was required, what was the proper
mechanism for State adoption for an interpretive rule where there is no
change to the CFR? We solicit comment on all of these questions.
5. Proposal To Revoke Rule
As part of NRDC's petition requesting reconsideration of the
Aggregation Amendments, NRDC further asked EPA to ``withdraw and
abandon the final rule.'' While rare, the Administrator has in the past
withdrawn, or revoked, a promulgated rule prior to its effective date.
The reasons for such action by the Administrator are varied, but
typically it is done when a final rule is determined to be either error
prone, confusing, overly burdensome, or unnecessary, such that leaving
the rule in place would not improve the program.\16\
---------------------------------------------------------------------------
\16\ See, e.g., ``Withdrawal of Revisions to the Water Quality
Planning and Management Regulation and Revisions to the National
Pollutant Discharge Elimination System Program in Support of
Revisions to the Water Quality Planning and Management Regulation''
proposed Dec. 27, 2002 (67 FR 79020) and finalized Mar. 19, 2003 (68
FR 13608).
---------------------------------------------------------------------------
An overarching concern of EPA is that our original policy goal for
developing the Aggregation Amendments--i.e., to provide improved
clarity in making aggregation determinations--does not appear to have
been achieved. This concern is reflected in the petition for
reconsideration, and we believe it has sufficient merit that we must
consider whether retaining the NSR Aggregation Amendments is justified.
While the rule may, in some respects, appear clearer than our past
policy, we are not convinced that it achieved enough additional clarity
to improve the process of making aggregation assessments by sources and
reviewing authorities. As noted above, our reexamination of the record
also leads us to believe that the apparent need for additional clarity
with the aggregation policy may have been overstated. Furthermore, as
discussed above, the rule introduces new ambiguities, particularly with
respect to implementation, that may further reduce its effectiveness.
Balancing this against the additional issues raised with respect to
the legal and implementation aspects of the final rule, as well as our
concern of possible under-inclusiveness of the final rule (i.e., the
chance that certain projects that should be aggregated would avoid
aggregation under the approach from the NSR Aggregation Amendments), we
believe that the prior agency policy may, on balance, provide a more
reasonable interpretation than the policy interpretation contained in
the final rule. We are therefore proposing as our preferred option to
revoke the final rule. If we ultimately decide through reconsideration
to revoke the NSR Aggregation Amendments, we believe we should restore
the past policy for making case-by-case aggregation determinations.
We specifically solicit comment on the legal concerns and possible
under-inclusiveness with the final rule. As noted above, comments
received on our proposal from various reviewing authorities show some
support for retaining the pre-existing aggregation factors. Thus, we
also request comment on whether the old policy framework for
aggregating nominally-separate changes is adequate if the NSR
Aggregation Amendments is revoked. Has the decision in New York II
helped to improve the understanding of the past policy direction in 3M-
Maplewood and other relevant memoranda?
6. Proposal To Extend Effective Date
As noted, the effective date of the NSR Aggregation Amendments is
May 18, 2010. This scheduled date was shifted from the original
effective date to allow time for the Agency to conduct a full
reconsideration of the final rule.
We are concerned now, however, that our reconsideration rulemaking
schedule will not meet the revised effective date. Furthermore, we
still have concerns, as noted above, with the final rule becoming
effective prior to completion of our reconsideration proceeding.
Recognizing this, we are proposing additional time that would enable us
to fully evaluate comments on issues that are in question and to
complete any revisions of the rule that become necessary as a result of
the reconsideration process, without the concern of the rule
prematurely becoming effective.
Therefore, we propose to delay the effective date of the NSR
Aggregation Amendments, published in the Federal Register on January
15, 2009 (74 FR 2376), until November 18, 2010. This delay would be for
an additional 6 months, which we believe would provide a reasonable
period of time to complete action on the reconsideration. We solicit
comment on a 6-month delay of the effectiveness of the final rule, and
we also solicit comment on a longer delay (e.g., 9 or 12 months).
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
We are not proposing any new paperwork requirements (e.g., monitoring,
reporting, recordkeeping) as part of this proposed action. This action
simply solicits comment on a number of legal and policy issues raised
in a petition for reconsideration on the NSR Aggregation Amendments,
and proposes an additional extension of the stay of the rule.
However, the OMB has previously approved the information collection
requirements contained in the existing regulations (40 CFR parts 51 and
52) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
et seq., and has been assigned OMB control number 2060-0003. The OMB
control numbers for EPA's regulations in 40 CFR are listed in 40 CFR
part 9.
C. Regulatory Flexibility Act
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 or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
[[Page 19574]]
For purposes of assessing the impacts of this proposal on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any new requirements on small entities.
We have determined that small businesses will not incur any adverse
impacts because no costs were associated with the NSR Aggregation
Amendments, and this proposed reconsideration of that rule simply
requests comment on a variety of issues, none of which would create any
new requirements or burdens. Therefore, no costs are associated with
this proposed amendment.
We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action does not contain a federal mandate under the provisions
of Title II of the Unfunded Mandates Reform Act of 1995 (``URMA''), 2
U.S.C. 1531-1538 for state, local, and tribal governments or the
private sector. This action simply solicits comment on a number of
issues raised in a petition for reconsideration on the NSR Aggregation
Amendments, and proposes to revoke the rule. Therefore, this action is
not subject to the requirements of sections 202 or 205 of UMRA.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on 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 simply solicits comment
on issues raised in NRDC's petition for reconsideration on the NSR
Aggregation Amendments, and proposes to revoke the rule. Thus,
Executive Order 13132 does not apply to this proposed rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicits comment on this proposed rule
from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000.) This action will
not impose any new obligations or enforceable duties on tribal
governments.
EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This action is not subject to EO 13045 (62 FR 19885), April 23,
1997) because the Agency does not believe the environmental health or
safety risks addressed by this action present a disproportionate risk
to children. We do not believe this action creates any environmental
health or safety risks.
The public is invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined under
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. This
action will not create any new requirements for sources in the energy
supply, distribution, or use sectors.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 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 United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because any impacts that
it will have will be global in nature and will not affect local
communities or populations in a manner that adversely affects the level
of protection provided to human health or the environment.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of the CAA, the
Administrator determines that this action is subject to the provisions
of section 307(d). Section 307(d)(1)(V) provides that the provisions of
section 307(d) apply to ``such other actions as the Administrator may
determine.''
V. Statutory Authority
The statutory authority for this action is provided by section
301(a) of the CAA as amended (42 U.S.C. 7601(a)). This notice is also
subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).
List of Subjects in 40 CFR Parts 51 and 52
Administrative practices and procedures, Air pollution control,
Environmental protection,
[[Page 19575]]
Intergovernmental relations, Aggregation.
Dated: March 29, 2010.
Lisa P. Jackson,
Administrator.
[FR Doc. 2010-7534 Filed 4-14-10; 8:45 am]
BILLING CODE 6560-50-P