Denial of the Petitions To Reconsider the Final Rule Promulgating the Primary National Ambient Air Quality Standard for Sulfur Dioxide, 4780-4800 [2011-1353]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Rules and Regulations]
[Pages 4780-4800]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1353]



[[Page 4779]]

Vol. 76

Wednesday,

No. 17

January 26, 2011

Part III





Environmental Protection Agency





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



40 CFR Parts 50, 53 and 58



Denial of the Petitions To Reconsider the Final Rule Promulgating the 
Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final 
Rule

Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / 
Rules and Regulations

[[Page 4780]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 53 and 58

[EPA-HQ-OAR-2007-0352; FRL-9255-7]


Denial of the Petitions To Reconsider the Final Rule Promulgating 
the Primary National Ambient Air Quality Standard for Sulfur Dioxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Denial of petitions to reconsider.

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

SUMMARY: The Environmental Protection Agency (EPA, or Agency) is 
denying the petitions to reconsider the final revised primary national 
ambient air quality standard (NAAQS) for oxides of sulfur as measured 
by sulfur dioxide (SO2) issued under section 109 of the 
Clean Air Act (CAA). The final revised SO2 Primary NAAQS was 
published on June 22, 2010, and became effective on August 23, 2010. 
EPA has carefully reviewed all of the petitions and revisited both the 
rulemaking record and the Administrator's decision process underlying 
the final revised SO2 Primary NAAQS in light of these 
petitions. EPA's analysis of the petitions reveals that the petitions 
have provided inadequate and generally irrelevant arguments and 
evidence that the underlying information supporting the final revised 
SO2 Primary NAAQS is flawed, misinterpreted or 
inappropriately applied by EPA. The petitioners' arguments fail to meet 
the criteria for reconsideration under the Clean Air Act.

DATES: This denial is effective January 14, 2011.

ADDRESSES: EPA's docket for this action is Docket ID No. EPA-HQ-OAR-
2007-0352. All documents in the docket are listed on the https://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information (CBI) or other information where 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 
EPA's Docket Center, Public Reading Room, EPA West Building, Room 3334, 
1301 Constitution Avenue, NW., Washington, DC 20004. This Docket Center 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Air Docket is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: Dr. Michael J. Stewart, Health and 
Environmental Impacts Division, Office of Air Quality Planning and 
Standards, U.S. Environmental Protection Agency, Mail code C504-06, 
Research Triangle Park, NC 27711; telephone: (919) 541-7524; fax (919) 
541-0237; e-mail: stewart.michael@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

    The following topics are discussed in this document:

I. Introduction
    A. Summary
    B. Background
    1. Revisions to the SO2 Primary NAAQS
    2. Preamble Discussion of Anticipated Approaches for 
Implementation
    3. Petitions for Reconsideration and for Judicial Review and 
Stay Requests
II. Standard for Reconsideration
III. Administrative Process Issues
    A. Summary of Petitioners' Arguments
    1. UARG
    2. NEDA/CAP
    3. ASARCO
    4. MSCC
    5. TCEQ
    6. North Dakota and South Dakota
    7. WVDEP
    8. ADEQ
    B. Responses to the Claims and Arguments Raised by the 
Petitioners
    1. Petitioners' Objections Are to Agency Actions Which Are Not 
Final
    2. EPA's Implementation Discussions Are Not of Central Relevance 
to the Decisions on the Final Revised SO2 Primary NAAQS
    3. EPA's Implementation Discussions Were a Logical Outgrowth 
From the Proposed Rule
    4. EPA Is Not Required To Promulgate Regulatory Requirements 
Regarding NAAQS Implementation and May Discuss Implementation Issues 
Through Non-Binding Guidance
IV. Statutory and Regulatory Issues
    A. Summary of Petitioners' Arguments
    1. Consistency With ``Cooperative Federalism'' of CAA
    2. Consistency With CAA Section 107(d) Designations Requirements
    3. Consistency With CAA Section 110(a) SIP Planning Requirements
    4. Consistency With CAA Section 171(2) Definition of 
``Nonattainment Area''
    5. Consistency With SO2 Primary NAAQS Regulatory Text
    B. Responses to the Petitioners' Statutory and Regulatory 
Arguments
V. Impact on Final Standard Issue
    A. Petitioners' Claims
    B. EPA's Response
VI. Stay of Final Rule Issue
    A. Summary of Petitioners' Administrative Requests
    B. EPA's Response to the Administrative Requests
VII. Conclusion

I. Introduction

A. Summary

    This is EPA's response denying the petitions to reconsider the 
final revised SO2 Primary NAAQS promulgated under Section 
109 of the Clean Air Act (CAA, or Act) (75 FR 35520, June 22, 2010). 
EPA has considered all of the petitions, including the arguments 
presented therein and information provided by the petitioners as 
supporting evidence of their claims, and including materials submitted 
to the District of Columbia Circuit Court of Appeals that petitioners 
provided regarding the same or similar claims raised there in support 
of motions to stay the revised SO2 Primary NAAQS. EPA has 
evaluated the merit of the petitioners' arguments in the context of the 
entire body of scientific and other evidence before the Agency. This 
response provides EPA's justifications for denying these petitions. 
Sections III-VI of this Decision set forth EPA's specific responses to 
the petitioners' arguments.
    After a comprehensive, careful review and analysis of the 
petitions, EPA has determined that the petitioners' arguments and 
evidence are inadequate, irrelevant to the promulgation of the final 
revised SO2 Primary NAAQS, and do not show that the 
underlying information supporting the revised SO2 Primary 
NAAQS is flawed, misinterpreted by EPA, or inappropriately applied by 
EPA. In fact, petitioners do not challenge the revised health-based 
SO2 Primary NAAQS at all. The focus of their petitions is, 
instead, EPA's non-binding preamble discussion providing guidance 
regarding expected approaches for future implementation of the revised 
SO2 Primary NAAQS, which they claim should not have been 
presented without first having undergone notice and comment procedures. 
They claim that this discussion relates to aspects of the revised 
SO2 Primary NAAQS that are of ``central relevance'' to the 
NAAQS decision itself, and as such have an impact on the promulgated 
NAAQS. The fact that EPA did not present this discussion in the notice 
of proposed rulemaking (NPRM), petitioners argue, violates the 
procedural requirements of the Clean Air Act and requires EPA to 
reconsider the promulgated rule. Moreover, petitioners argue that the 
discussion in the final rule preamble conflicts with numerous 
substantive provisions of the Act, as well as the

[[Page 4781]]

regulatory text of the final NAAQS. Therefore, petitioners claim, EPA 
must stay the effectiveness of the revised SO2 Primary 
NAAQS, pending the Agency's reconsideration of the preamble discussion 
and of the promulgated NAAQS.
    As discussed in detail throughout this decision, petitioners' 
claims and the information they submit do not change or undermine our 
scientific conclusions regarding the appropriateness of the revisions 
to the SO2 Primary NAAQS, as determined under section 109 of 
the CAA. Nor do they change or undermine our conclusions regarding the 
promulgated requirements for an SO2 monitoring network or 
the conforming regulatory changes we made to the Air Quality Index 
(AQI). More specifically, the arguments in the petitions do not lead 
EPA to change its final decisions regarding the need to revise the 
prior SO2 Primary NAAQS, and what those revisions should be. 
EPA's decisions were based on a thorough review in the Integrated 
Science Assessment for Oxides of Sulfur--Health Criteria (ISA) of 
scientific information on known and potential human health effects 
associated with exposure to SO2 in the air. Those final 
decisions also took into account: (1) EPA's Risk and Exposure 
Assessment to Support the Review of the SO2 Primary National 
Ambient Air Quality Standard (REA), which provided quantitative 
exposure and risk analyses based on the ISA; (2) advice and 
recommendations of the statutory review body, the Clean Air Act Science 
Advisory Committee (CASAC), as reflected in its letters to the 
Administrator and its public discussions of the ISA and REA; (3) public 
comments received during the development of the ISA and REA; and (4) 
public comments received on EPA's NPRM for the revised SO2 
Primary NAAQS.
    A core defect in petitioners' arguments is that they are not based 
on consideration of the body of scientific information that informed 
EPA's final decisions in promulgating the revised SO2 
Primary NAAQS. In fact, petitioners' arguments have nothing at all to 
do with EPA's scientific conclusions, and provide no new information or 
basis for EPA to revisit either those conclusions or the specific 
SO2 Primary NAAQS that EPA promulgated. Petitioners' 
objections regarding the final rule preamble's non-binding discussion 
of anticipated future implementation approaches are neither relevant to 
nor persuasive in challenging EPA's promulgated revised SO2 
Primary NAAQS. They certainly are not material or a reliable basis on 
which to question the validity and credibility of the body of science 
underlying EPA's SO2 NAAQS decision, or the decision process 
as articulated in the NPRM and final rulemaking notice. Petitioners' 
assertions regarding the additional preamble discussion providing 
guidance on expected future and separate implementation actions are 
thus not an appropriate basis on which to challenge the voluminous and 
well documented body of science that is the technical foundation of 
EPA's revised SO2 Primary NAAQS.
    A second, and equally important, defect in petitioners' arguments 
is their assumption that EPA's non-binding preamble discussion of 
anticipated approaches for separate future implementation actions 
constituted, itself, final agency action governing those future 
actions. Although petitioners do not demonstrate how EPA's discussion 
has such final, binding and enforceable effect, their implicit 
assumption is that EPA has already taken final rulemaking action on the 
discussed implementation approaches. Only if EPA had taken such final 
action on these discussed approaches could there possibly be an issue 
regarding whether EPA's discussion was a ``logical outgrowth'' of the 
proposed rule, and whether it was of ``central relevance'' to the 
promulgated revised SO2 Primary NAAQS sufficient to support 
a petition for reconsideration. Similarly, for the discussion to 
constitute a ``procedural error,'' it would first have to represent a 
``determination'' under section 307(d) that is a final rulemaking 
action. But the preamble discussion at issue was not such a final 
agency action. EPA plainly stated that the discussion represented non-
binding guidance regarding future actions, that the Agency's 
anticipated approach could continue to evolve as further guidance is 
developed, and that the Agency expected there to be circumstances in 
which the anticipated approaches may not apply. In other words, 
regarding the implementation discussion, EPA has not yet taken a final 
action that could be ``reconsidered.''
    Even assuming, for the sake of argument, that EPA's implementation 
discussion as presented in the final preamble to the SO2 
Primary NAAQS could have constituted final action, it is separate and 
independent from the establishment of the health-based SO2 
Primary NAAQS itself. Therefore, the Agency does not regard the 
discussion as having been of ``central relevance'' to the regulatory 
decision on the NAAQS itself. In setting NAAQS that are ``requisite'' 
to protect public health with an adequate margin of safety, as provided 
in section 109(b) of the Act, EPA's task is to establish standards that 
are neither more nor less stringent than necessary for these purposes. 
In so doing, EPA may not consider costs of implementing the standards. 
Whitman v. American Trucking Associations, 531 U.S. 457, 471, 475-76 
(2001). Petitioners frequently assert that the implementation 
discussion is an ``aspect'' of the final NAAQS itself, but this is 
incorrect given that issues regarding future implementation are not 
part of the NAAQS itself and are legally irrelevant to the setting of 
the NAAQS. At most, the preamble's discussion of modeling partly 
influenced only the reduced scope of the promulgated required 
monitoring network, compared to that proposed, and no petitioner has 
objected to that reduction. Consequently, we reject petitioners' 
assertions that the non-binding preamble discussion of the anticipated 
future implementation approaches, even if ``final action,'' is ``of 
central relevance'' to the promulgation of the SO2 Primary 
NAAQS, and therefore conclude that reconsideration of the rule in light 
of that discussion is not warranted.
    Assuming again for the purpose of argument that the preamble's non-
binding implementation discussion could be both ``final action'' and 
``of central relevance'' to the outcome of the NAAQS decision, we 
further disagree with petitioners' claims that the discussion was not a 
``logical outgrowth'' of the proposal and that the CAA required us to 
present the discussion in the NPRM before we could address the expected 
implementation approaches in the final rule's preamble or in other 
guidance documents. Although the NPRM did not specifically address the 
modeling based approach to implementation discussed in the preamble to 
the final rule, it has long been EPA's practice in implementing the 
prior SO2 Primary NAAQS to rely upon both modeling and 
monitoring to determine whether areas have attained the NAAQS. To the 
extent the preamble discussion in the NPRM concerning a monitoring 
based approach was interpreted by interested parties to announce a 
proposed change to that longstanding practice, the context for this 
proposed change was the past practice of the Agency and the rulemaking 
process inherently leaves open the possibility that an agency will 
choose not to adopt any proposed change to its historic practice. 
Therefore, interested parties should have foreseen that EPA might not, 
in fact, ``promulgate'' any such change but instead discuss our 
expectation to continue our historic practice, and they

[[Page 4782]]

had ample opportunity to comment on that possibility. In fact, 
interested parties did comment on the related issue of the burden of 
relying on monitoring, and suggested that EPA instead use modeling to 
relieve that administrative burden. Partly in response to those 
comments, EPA explained its anticipated approaches of continuing to 
rely upon both modeling and monitoring in implementing the Primary 
SO2 NAAQS, and made clear that except for the promulgated 
provisions relating to the scope of the monitoring network and 
associated requirements, the Agency was still developing its policy for 
future implementation actions such as area designations and 
determinations of NAAQS attainment, and would decide whether to base 
such actions on modeling or monitoring in the future on a case-by-case 
basis. Thus, although EPA disagrees with the petitioners' view that the 
non-binding preamble discussion on future implementation represents 
final agency action of central relevance to the NAAQS decision, even if 
the preamble to the final rule has this effect, EPA committed no 
procedural error in presenting this discussion in the final rule's 
preamble, and reconsideration is not warranted.
    Furthermore, EPA disagrees with petitioners' assertions that the 
Agency is required under the CAA to promulgate, as regulatory 
provisions, requirements addressing future implementation of the NAAQS 
of the type that petitioners demand. Nothing in the CAA requires this, 
and the rulemaking for prior SO2 Primary NAAQS did not 
contain such regulatory requirements. Consequently, we disagree with 
petitioners' claims that it is now improper to continue to address 
implementation issues in non-binding guidance such as that which EPA 
has frequently issued regarding SO2 NAAQS implementation and 
which EPA presented in the final rule preamble. Although the preamble's 
inclusion of such guidance and statements regarding the intent to issue 
further guidance do not warrant reconsideration of the final rule, we 
fully expect to continue to evaluate implementation issues as we 
proceed to develop such non-binding guidance and take implementing 
actions.
    In addition to petitioners' administrative process arguments, EPA 
disagrees with petitioners' claims that the final rule preamble's non-
binding implementation discussion is inconsistent with applicable 
substantive CAA statutory provisions or with the regulatory text of the 
SO2 Primary NAAQS. Petitioners present a series of arguments 
claiming that our explanation of our anticipated approaches for area 
designations and action on state implementation plan (SIP) submissions 
unlawfully conflicts with the principles of ``cooperative federalism'' 
embraced by the CAA and with provisions and past practice under, for 
example, CAA sections 107(d), 110(a), 171(2), and the promulgated 
regulatory text of 40 CFR 50.17(b) and (c) and Appendix T section 1.1. 
As we explain in section IV below, none of petitioners' arguments has 
merit or warrants reconsideration of the final rule. Moreover, 
petitioners must necessarily wait for final agency action to challenge 
whatever implementation approaches EPA eventually adopts when making 
designations and taking SIP actions. Moreover, we continue to believe 
the implementation approaches discussed in the final rule preamble, if 
taken in future final actions, would be consistent with governing 
statutory and regulatory provisions. Of course, if public comments we 
receive on those future actions persuade us otherwise, we would 
consider taking other approaches and nothing EPA has done or stated to 
this point forecloses ultimate adoption of entirely different 
approaches. The very fact that future actions will provide us this 
opportunity to refine and otherwise change our anticipated approaches 
in advance of taking final action to make them binding shows that 
reconsideration of them under CAA section 307(d)(7)(B), at this 
preliminary stage, is not warranted. Nor are these objections ``of 
central relevance'' to the outcome of the final SO2 Primary 
NAAQS. Thus, they do not meet the criteria for reconsideration under 
CAA section 307(d)(7)(B).
    For similar reasons, discussed further in Section V, we disagree 
with petitioners' claims that the non-binding implementation discussion 
has any ``impact'' on the promulgated NAAQS. As the discussion does not 
represent final agency action, it cannot have any direct and immediate 
``impact'' on anything. Petitioners' objections on this point distill 
to a claim that using modeling to determine whether areas are attaining 
the SO2 Primary NAAQS would be more ``conservative'' and 
could over-predict ambient SO2 concentrations in a specific 
instance, resulting in more identified violations than if monitoring 
were exclusively used. Of course, if such over-prediction were claimed 
to occur in a given instance, interested parties would have a fair 
opportunity to show that using modeling in that case may not be 
appropriate. As explained in the preamble discussion, we believe that 
the opposite is more likely to be true. The SO2 Primary 
NAAQS itself is premised on the three-year average of the 99th 
percentile of the daily maximum 1-hour average concentrations not 
exceeding the level of the NAAQS in the ambient air. See 40 CFR 
50.17(b) at 75 FR 35592. Modeling can very accurately identify areas of 
potential daily maximum 1-hour concentrations above the NAAQS. See 75 
FR at 35559. Accurate prediction of daily maximum 1-hour SO2 
concentrations does not make the NAAQS more stringent, but, rather, 
implements it faithfully.
    Finally, as further explained in section VI, EPA concludes that 
there is no basis for an administrative stay of the final 
SO2 Primary NAAQS. Under CAA section 307(d)(7)(B), EPA has 
authority to issue a stay for up to three months if it grants a 
petition to reconsider a final rule. As we are denying the petitions to 
reconsider, an administrative stay here is not warranted. In addition, 
a stay is not otherwise warranted. First, the petitioners have not made 
a strong showing on the merits that reconsideration is warranted, for 
all of the reasons upon which EPA is denying the petitions to 
reconsider. Second, the petitioners' general and speculative arguments 
concerning irreparable harm fail to account for the non-binding nature 
of the final rule preamble's implementation discussion, the 
opportunities for interested parties to assert their views in the 
future implementation actions about which petitioners are concerned, 
and also do not account for EPA's stated intention to provide further 
implementation guidance. Third, petitioners are incorrect in 
maintaining that it would be in the public interest to grant an 
administrative stay of the rule. Their arguments ignore the harm to the 
public that would occur from delayed implementation and attainment of 
the revised SO2 Primary NAAQS, rendering such a stay 
contrary to the public interest.

B. Background

1. Revisions to the SO2 Primary NAAQS
    Based on its review of the air quality criteria for oxides of 
sulfur and the primary NAAQS for oxides of sulfur as measured by 
SO2, EPA published a revised Primary SO2 NAAQS on 
June 22, 2010, so that the standards are requisite to protect public 
health with an adequate margin of safety, as appropriate under CAA 
section 109. See 75 FR 35520-35603. Specifically, EPA replaced the 
prior 24-hour and annual standards with a new one-hour SO2 
standard at a level of 75 parts per billion (ppb), based on the three-
year average of

[[Page 4783]]

the annual 99th percentile of 1-hour daily maximum concentrations. EPA 
also established requirements for an SO2 monitoring network 
under section 110. See 75 FR at 35602. EPA did not, in this regulation, 
promulgate requirements governing designations of areas as either 
nonattainment, attainment or unclassifiable with respect to the revised 
NAAQS under CAA section 107, or governing development and approval of 
SIPs under CAA sections 110 and 192. Instead, for these future 
implementation actions, EPA provided in the preamble non-binding 
guidance regarding how the Agency initially expects to designate areas 
under the new NAAQS and how the NAAQS would be implemented by States, 
Tribes, local governments and EPA. See 75 FR at 35550-54, 35569-82. EPA 
indicated that the Agency expected to provide additional guidance for 
those future actions. Id.
    EPA revised the SO2 primary NAAQS pursuant to two 
sections of the CAA that govern NAAQS establishment and revision. 
Section 108 directs EPA to identify and list air pollutants that meet 
certain criteria, including that the air pollutant ``in [the 
Administrator's] judgment, cause[s] or contribute[s] to air pollution 
which may reasonably be anticipated to endanger public health and 
welfare'' and ``the presence of which in the ambient air results from 
numerous or diverse mobile or stationary sources.'' CAA sections 
108(a)(1). For those air pollutants listed, section 108 requires EPA to 
issue air quality criteria that ``accurately reflect the latest 
scientific knowledge useful in indicating the kind and extent of all 
identifiable effects on public health or welfare which may be expected 
from the presence of [a] pollutant in ambient air * * *'' CAA section 
108(a)(2).
    Section 109(a) directs EPA to promulgate ``primary'' and 
``secondary'' NAAQS for pollutants for which air quality criteria have 
been issued. Section 109(b)(1) defines a primary standard as one ``the 
attainment and maintenance of which in the judgment of the 
Administrator, based on [the air quality] criteria and allowing an 
adequate margin of safety, are requisite to protect the public 
health.'' CAA section 109(b)(1). The legislative history of section 109 
indicates that a primary NAAQS is to be set at ``the maximum 
permissible ambient air level * * * which will protect the health of 
any [sensitive] group of the population,'' and that for this purpose 
``reference should be made to a representative sample of persons 
comprising the sensitive group rather than to a single person in such a 
group.'' S. Rep. No. 91-1196, 91st Cong., 2d Sess. 10 (1970). See also 
American Lung Ass'n v. EPA, 134 F.3d 388, 389 (D.C. Cir. 1998) (``NAAQS 
must protect not only average healthy individuals, but also `sensitive 
citizens'--children, for example, or people with asthma, emphysema, or 
other conditions rendering them particularly vulnerable to air 
pollution. If a pollutant adversely affects the health of these 
sensitive individuals, EPA must strengthen the entire national 
standard.''); Coalition of Battery Recyclers Ass'n v. EPA, 604 F.3d 
613, 617-18 (D.C. Cir. 2010) (same).
    The requirement that primary NAAQS include an adequate margin of 
safety is intended to address uncertainties associated with 
inconclusive scientific and technical information available at the time 
of standard setting. It is also intended to provide a reasonable degree 
of protection against hazards that research has not yet identified. 
Lead Industries Ass'n v. EPA, 647 F.2d 1130, 1154 (D.C. Cir. 1980), 
cert. denied, 449 U.S. 1042 (1980); American Petroleum Inst. v. Costle, 
665 F.2d 1176, 1186 (D.C. Cir. 1981), cert. denied, 455 U.S. 1034 
(1982). Thus, in selecting primary NAAQS, EPA may seek not only to 
prevent pollution levels that have been demonstrated to be harmful but 
also to prevent lower pollution levels that may pose an unacceptable 
risk of harm, even if the risk is not precisely identified as to the 
nature or degree.
    In addressing the requirement for a margin of safety, EPA considers 
such factors as the nature and severity of the health effects involved, 
the size of the at-risk population[s], and the kind and degree of the 
uncertainties that must be addressed. In setting standards that are 
``requisite'' to protect public health and welfare, as provided in 
section 109(b), EPA's task is to establish standards that are neither 
more nor less stringent than necessary for these purposes. In so doing, 
EPA may not consider the costs of implementing the standards. Whitman 
v. American Trucking Ass'n, 531 U.S. 457, 475-76 (2001). Consequently, 
in establishing the revised SO2 Primary NAAQS, EPA did not 
consider future implementation burdens or costs that might be borne by 
industrial sources, States, Tribes, local governments, or by EPA 
itself, such considerations not being relevant to the science based 
determinations required to be made under CAA section 109. However, as 
mentioned above, EPA did discuss and provide guidance on issues related 
to future implementation, without such considerations impermissibly 
affecting EPA's decision on the NAAQS itself.
    States are primarily responsible for ensuring attainment and 
maintenance of NAAQS once EPA establishes them. Under CAA section 110 
and related provisions, States submit, for EPA approval, SIPs that 
provide for implementation, maintenance, enforcement, and attainment of 
such standards through control programs directed to sources of the 
pollutants involved. The States, in conjunction with EPA, also 
administer the prevention of significant deterioration (PSD) program 
under CAA sections 160-169 that covers these sources. In addition, 
federal programs provide for nationwide control of emissions through: 
The motor vehicle and motor vehicle fuel program under title II of the 
CAA; the new source performance standards (NSPS) under CAA sections 111 
and 129; and the acid rain program under CAA title IV. EPA has also 
promulgated the Clean Air Interstate Rule (CAIR) to require additional 
SO2 emission reductions needed in the eastern United States. 
This rule was remanded by the U.S. Court of Appeals for the D.C. 
Circuit, and EPA recently proposed revisions to it. See North Carolina 
v. EPA, 531 F.3d 896 (D.C. Cir. 2008) and 75 FR 45210 (August 2, 2010). 
EPA is also developing ``maximum achievable control technology'' (MACT) 
standards under CAA sections 112 and 129 that the Agency expects will 
result in significant SO2 reductions from the subject source 
categories.
    EPA formally initiated the most recent review of the air quality 
criteria for oxides of sulfur and of the SO2 Primary NAAQS 
on May 15, 2006 (71 FR 29023). The first draft of the ISA for Oxides of 
Sulfur-Health Criteria (ISA) and the Sulfur Dioxide Health Assessment 
Plan: Scope and Methods for Exposure and Risk Assessment (EPA, 2007b) 
were reviewed by CASAC at a public meeting held on December 5-6, 2007. 
EPA then developed the second draft of the ISA and the first draft of 
the Risk and Exposure Assessment to Support the Review of the 
SO2 Primary [NAAQS] (REA), which CASAC reviewed at a public 
meeting held on July 30-31, 2008. EPA released the final ISA in 
September 2008 (EPA, 2008a). A second draft of the REA was reviewed by 
CASAC at a public meeting held April 16-17, 2009. The final REA 
containing the final staff policy assessment that considered the 
evidence presented the final ISA and the air quality, exposure, and 
risk characterization results as they related to the adequacy of the 
then-current SO2 NAAQS and potential alternative primary 
SO2 standards, was completed in August 2009 (EPA 2009a).
    On December 8, 2009, EPA published its proposed revisions to the 
primary SO2 NAAQS. See 74 FR 64810. EPA

[[Page 4784]]

presented a number of conclusions, findings, and determinations 
proposed by the Administrator, and invited general, specific, and/or 
technical comments on all issues involved with this proposal, including 
all such proposed judgments, conclusions, findings and determinations. 
EPA carefully considered these comments as it made its final decisions 
regarding the revised SO2 Primary NAAQS, as EPA described in 
its notice of final rulemaking. See 75 FR at 35523. The Administrator 
signed the final rule on June 2, 2010, and it was published in the 
Federal Register on June 22, 2010. EPA's thorough and detailed 
scientific rationale for the revised SO2 Primary NAAQS is 
set forth at 75 FR 35524-35550. For the reasons discussed therein, and 
taking into account information and assessments presented in the ISA 
and the REA, as well as the advice and recommendations of CASAC, the 
Administrator concluded that the then-current 24-hour and annual 
primary SO2 NAAQS were not requisite to protect public 
health with an adequate margin of safety. The Administrator also 
reviewed each of the elements of the NAAQS--indicator, averaging time, 
form, and level--and promulgated a revised standard of 75 ppb based on 
the three-year average of the annual 99th percentile of the daily 
maximum one-hour average concentrations of SO2. The 
Administrator concluded that this standard will appropriately protect 
public health with an adequate margin of safety, and specifically will 
afford appropriate increased protection for asthmatics and other at-
risk populations against an array of adverse respiratory health effects 
related to short-term (5 minutes to 24 hours) SO2 exposure. 
These effects include decrements in lung function, increases in 
respiratory symptoms, and related serious indicators of respiratory 
morbidity including emergency department visits and hospital admissions 
for respiratory causes. As the petitions for reconsideration do not 
challenge EPA's scientific conclusions or any element of the new 
standard, this response to the petitions does not further discuss the 
Administrator's scientific determinations or her decision regarding the 
final revised SO2 Primary NAAQS, other than to reiterate 
that issues regarding how the standard would be implemented or the 
costs of implementation received no consideration in the decision 
regarding the NAAQS. See Whitman v. American Trucking Ass'ns, 531 U.S. 
at 475-76.
2. Preamble Discussion of Anticipated Approaches for Implementation
    Although discussions regarding implementation are not part of the 
NAAQS itself, it is EPA's customary practice to provide separate 
implementation guidance--and in some cases regulatory requirements--
regarding a new or revised NAAQS, along with guidance on designations 
and other issues. The December 8, 2009, NPRM for the SO2 
Primary NAAQS included a summary discussion regarding future 
implementation actions such as designations of areas under the 
standard, SIP development, and new source review (NSR) and PSD 
permitting. See 74 FR 64810, 64858-64. This discussion essentially 
outlined the separate statutory provisions and requirements that would 
be triggered following final promulgation of a revised NAAQS under 
section 109(d). As part of this general discussion, EPA presented 
limited preliminary explanations of how the Agency expected some of 
these future actions might be addressed. For example, regarding area 
designations under section 107(d) of the Act, EPA stated it did not 
expect new monitors required under a new monitoring network would be in 
place in time to generate data to inform designations under the 
statutory timetable, and the Agency explained that some areas could be 
designated as unclassifiable because EPA would be unable to determine 
whether they are violating the 1-hour standard or contributing to a 
violation in a nearby area. See 74 FR at 64859. EPA also summarized the 
CAA section 110 requirement that States submit SIPs showing attainment 
and maintenance of a revised NAAQS through control programs directed at 
sources of SO2 emissions, including, for example, NSR and 
PSD programs. See 74 FR at 64859-63. Regarding PSD, EPA specifically 
discussed preliminary issues regarding the use of modeling to 
demonstrate that emissions increases from new or modified sources will 
not cause or contribute to a violation of the new NAAQS. See 74 FR at 
64862. However, the NPRM did not contain any proposed regulatory 
provisions regarding area designations under section 107, or regarding 
SIP implementation under section 110 and related provisions, except as 
discussed below.
    The NPRM also proposed regulatory amendments regarding the 
monitoring network design, in order to better identify where short-
term, peak ground-level concentrations of SO2 may occur. See 
74 FR at 64849-55. EPA proposed a two-pronged monitoring network 
comprised of all source-oriented monitors, with requirements that the 
network contain at least a specified number of monitors in the 
following locations: (1) Monitors in urban areas where there is a 
higher coincidence of population and emissions, utilizing a Population 
Weighted Emissions Index (PWEI), and (2) monitors in States based on 
each State's contributions to the national SO2 emissions 
inventory. This two-pronged network would have resulted in a minimum of 
approximately 348 source-oriented monitors nationwide. EPA noted that 
due to multiple variables that affect ground-level SO2 
concentrations caused by one or more stationary sources, it is 
difficult to specify a priori a source-specific threshold, algorithm, 
or metric by which to accurately identify the monitoring location where 
peak concentrations occur. See 74 FR at 64850-51. Consequently, EPA 
explained that States may need to conduct other quantitative analyses, 
such as modeling, to identify where ground-level SO2 maximum 
concentrations may occur and where to site monitors (see 74 FR at 
64851-52, 64853-54), and requested comment on whether to utilize 
existing screening and refined modeling tools to identify facilities 
with the potential to cause an exceedance of the proposed revised 
SO2 NAAQS (see 74 FR at 64854-55).
    Besides monitoring and reporting requirements, the only 
implementation related regulatory provisions EPA proposed had to do 
with making the transition to the new standard and including ``anti-
backsliding'' principles consistent with section 172(e) of the Act. See 
74 FR at 64863-64. EPA announced it was proposing that the prior NAAQS 
would remain in place for one year following the effective date of a 
designation under the new NAAQS in an area, before being revoked in 
most attainment areas. Further, EPA proposed that all existing SIP and 
FIP requirements currently in effect under CAA sections 110, 191 and 
192 would remain in effect. For all areas designated nonattainment 
under the prior NAAQS or subject to ``SIP Calls,'' EPA proposed that 
the prior NAAQS would remain in effect until the area had received full 
approval of a SIP meeting the attainment requirements of the new NAAQS. 
EPA proposed regulatory amendments to 40 CFR 50.4 to this effect. The 
final NAAQS rulemaking promulgated these proposed requirements, with 
minor clarifying amendments to address public comments received on the 
proposed

[[Page 4785]]

requirements. See 75 FR at 35580-82; 40 CFR 50.4(e).
    The final rulemaking notice, in addition to explaining the codified 
requirements regarding monitoring and anti-backsliding, also presented 
a more thorough non-binding discussion than did the NPRM of how EPA 
anticipated subsequent designations and SIP planning actions would be 
implemented. See 75 FR at 35550-80. Partly in response to public 
comments arguing that the proposed monitoring network was 
simultaneously insufficient to identify all points of maximum ambient 
SO2 concentrations and overly burdensome in the number of 
monitors it proposed to require, EPA explained that it now expected to 
follow its traditional approach in SO2 NAAQS implementation 
of utilizing both modeling and monitoring to inform future designation 
and SIP approval actions. EPA explained that its anticipated approach 
would better address: (1) The unique source-specific impacts of 
SO2 emissions, (2) the special challenges SO2 
emissions present in terms of monitoring short-term SO2 
levels for comparison with the NAAQS, (3) the generally superior 
utility that modeling offers for assessing SO2 
concentrations, and (4) the most appropriate method for ensuring that 
areas attain and maintain the NAAQS, taking into account the potential 
substantial SO2 emissions reductions from forthcoming 
national and regional rules currently under development. See 75 FR at 
35550. EPA explained that except for the final regulatory provisions 
such as those regarding the promulgated monitoring network, the 
implementation discussion explained the Agency's expected and intended 
approach to future action as guidance, not as final agency action, and 
acknowledged that EPA's approaches may continue to evolve as actual 
implementation proceeds. Id. For example, in the part of the discussion 
outlining EPA's general expectation for what roles modeling and 
monitoring would play in initial area designations under CAA section 
107, EPA noted that decisions about whether to base an attainment 
designation on monitoring alone would be made on a case-by-case basis. 
See 75 FR at 35552, n. 22. EPA further explained that it planned to 
issue more implementation guidance, particularly regarding the use of 
refined dispersion modeling. See 75 FR at 35550. EPA has in fact 
already provided some further guidance regarding implementation of the 
revised SO2 Primary NAAQS. See Memorandum from Stephen D. 
Page, Director, Office of Air Quality Planning and Standards, to 
Regional Air Division Directors, ``Guidance Concerning Implementation 
of the 1-hour SO2 NAAQS for the Prevention of Significant 
Deterioration Program,'' and attachments (Aug. 23, 2010) (included in 
the docket for this notice of denial).
    EPA described its historical preference for having used modeling 
more than monitoring to support SO2 NAAQS compliance 
determinations, and referred to numerous prior actions dating from the 
late 1970s through 2002 in implementing the SO2 NAAQS that 
had taken this approach. See 75 FR at 35551. EPA explained the unique 
aspects of SO2 that had caused the Agency to have less 
confidence in relying on monitoring compared to situations involving 
other NAAQS pollutants and how this affected its expected approach to 
initial designations, given that the new monitoring network would not 
be in place in time under the statutory timetable for issuing 
designations. EPA also indicated that it did not expect States to be 
able in that timeframe to conduct refined dispersion modeling for all 
of the sources that may potentially cause or contribute to a violation 
of the revised NAAQS. See 75 FR at 35551-52. EPA thus explained that it 
was likely that most areas would therefore be initially designated as 
``unclassifiable'' under the new NAAQS, and that an appropriate 
approach needed to be identified to ensure that all areas ultimately 
attain and maintain the revised NAAQS. See 75 FR at 35552-53. The 
anticipated approach, EPA discussed, was to rely upon the CAA section 
110(a)(1) requirement for SIP submissions from all areas--attainment, 
unclassifiable, and nonattainment--following NAAQS revision. Although 
EPA had often historically expected very little from States in this 
submission in the way of substantive demonstrations or control 
requirements, relying on new source review programs to keep areas in 
attainment, EPA explained that in the case of SO2 the 
section 110(a)(1) SIP provided an opportunity to allow States to 
include in attainment demonstration modeling expected SO2 
reductions from future federal and regional control programs currently 
in development that would not be in effect in time to inform initial 
designations. Id. To ensure that these attainment demonstrations would 
result in timely nationwide attainment of the new NAAQS just as 
expeditiously as would occur if EPA were to designate as nonattainment 
areas with sources that may potentially cause or contribute to NAAQS 
violations in advance of these new national and regional programs 
becoming effective, EPA explained that it anticipated States would 
submit section 110(a)(1) SIPs to show attainment on the same schedule 
as would apply for nonattainment areas, i.e., no later than 
approximately August 2017. EPA indicated its expectation that this date 
would represent attainment as expeditiously as practicable for all 
areas. Id. EPA provided detailed non-binding guidance discussions of 
its expected approach toward future designations at 75 FR 35569-71, and 
of its expected implementation strategy at 75 FR 35571-80. However, EPA 
noted that any determination of actual attainment dates would await 
notice and comment rulemaking with respect to a particular area and 
SIP. Id. at 35573.
    Although the discussion regarding designations and SIP 
implementation constituted non-binding guidance, the approach discussed 
had a role in EPA's final decisions on the size of the required 
monitoring network, and the anti-backsliding requirements. The 
discussion had no impact on the Agency's final decision on the NAAQS 
itself. In particular, partly as a result of EPA's review of its 
historic practice in assessing SO2 NAAQS compliance, EPA in 
the final rule modified its proposed requirements concerning the 
minimum size of the monitoring network. See 75 FR at 35554, 35556-62. 
The result was that EPA reduced the final minimum monitoring network 
requirement to approximately 163 monitors from the proposed number of 
approximately 348. See 75 FR at 35557. And, as mentioned above, within 
the implementation discussion EPA discussed its promulgated 
requirements addressing the ``anti-backsliding'' provisions of CAA 
section 172(e). See 75 FR at 35580-82. Finally, both in order to 
conform the regulatory text for the new NAAQS to that addressing other 
NAAQS, and in recognition of the fact that both monitoring and modeling 
may be used by States to implement the new NAAQS, EPA added clarifying 
regulatory text to refer to those situations in which compliance is 
measured by use of monitoring. See 75 FR at 35582; 40 CFR 50.17(b) and 
section 1(a) of Appendix T to part 50.
3. Petitions for Reconsideration and for Judicial Review and Stay 
Requests
    Following promulgation of the revised SO2 Primary NAAQS, 
on August 23, 2010, numerous parties filed petitions for judicial 
review in the U.S. Court of Appeals for the D.C. Circuit. See National 
Environmental Development Association's Clean Air Project v. EPA,

[[Page 4786]]

No. 10-1252 (consolidated with Nos. 10-1254, 10-1255, 10-1256, 10-1258 
and 10-1259) (D.C. Cir.). Each of those parties also on the same day 
submitted to EPA petitions for administrative reconsideration of the 
rule under CAA section 307(d)(7)(B). The petitions for reconsideration 
objected to EPA's final rulemaking preamble discussion explaining the 
Agency's anticipated approaches in future designations and SIP actions. 
Some of the petitioners characterized their petitions as requesting, 
first, ``clarification'' from EPA regarding ``key portions of the 
implementation provisions of the Rule to ensure that the Rule is 
implemented as written'' (see, e.g., UARG Petition at 3), and, second, 
in the alternative, that EPA reconsider its discussed approach of how 
it intends to implement the revised NAAQS and conduct notice and 
comment on implementation procedures (see, e.g., id.). In addition, 
each petition requested that EPA administratively stay the final rule's 
effectiveness pending such reconsideration. Id.
    Specifically, EPA received: A single petition for reconsideration 
from the Utility Air Regulatory Group (UARG), the America Petroleum 
Institute (API), the Council of Industrial Boilers (CIBO), the American 
Iron and Steel Institute (AISI), the American Coke and Coal Chemicals 
Institute (ACCCI), the American Chemistry Council (ACC), the American 
Forest & Paper Association (AF&PA), the American Wood Council (AWC), 
the Brick Industry Association (BIA), the Corn Refiners Association 
(CRA) and the National Oilseed Processors Association (NOPA) 
(collectively, UARG); and separate petitions from the National 
Environmental Development Association's Clean Air Project (NEDA/CAP), 
ASARCO LLC (ASARCO), the Montana Sulphur & Chemical Company (MSCC), the 
Texas Commission on Environmental Quality (TCEQ), and the States of 
North Dakota and South Dakota (ND and SD). Additionally, EPA's Region 3 
Office received a letter from the West Virginia Department of 
Environmental Protection (WVDEP) objecting to the final rule and urging 
EPA to ``reconsider'' its anticipated approach to implementation of the 
NAAQS, and the Arkansas Department of Environmental Quality (ADEQ) sent 
the Administrator a letter in support of the petitions submitted by 
TCEQ and by North Dakota and South Dakota.
    Before EPA could respond to the petitions for reconsideration and 
their requests for an administrative stay of the SO2 Primary 
NAAQS, on October 8, 2010, the State of North Dakota filed in the D.C. 
Circuit a motion (ND Motion) asking the Court to either stay the 
effectiveness of the final SO2 Primary NAAQS pending 
completion of judicial review of the rule, or, in the alternative, stay 
the effectiveness of the June 2, 2011, statutory deadline for States to 
submit any recommendations for attainment/nonattainment designations. 
See ND Motion at 20. On November 8, 2010, UARG, NEDA/CAP, and the 
SO2 NAAQS Coalition filed a response in support of the ND 
Motion, as did TCEQ and ASARCO. On the same day, EPA filed its response 
in opposition to the ND Motion, and so did the American Lung 
Association (ALA) and the Environmental Defense Fund (EDF) as 
intervenor-movants. Following this, on November 22, 2010, North Dakota 
filed its reply to the various responses, and EPA filed a motion to 
strike the responses filed by the UARG, NEDA/CAPS, the SO2 
NAAQS Coalition and ASARCO. On December 2, 2010, these petitioners 
filed their response to EPA's motion to strike, to which EPA replied on 
December 10, 2010. On December 14, 2010, the Court issued an order 
denying EPA's motion to strike, granting EPA's motion to hold the 
litigation in abeyance, allowing EPA to file a response to the 
responses in support of the ND Motion by January 18, 2011, directing 
EPA to file a motion to govern further proceedings in the litigation by 
January 18, 2011, and deferring a ruling on the ND Motion to stay the 
rule pending further order of the Court.

II. Standard for Reconsideration

    Section 307(d)(7)(B) of the CAA strictly limits petitions for 
reconsideration both in time and scope. It states that: ``Only an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review. If the person raising an 
objection can demonstrate to the Administrator that it was 
impracticable to raise such objection within such time or if the 
grounds for such objection arose after the period for public comment 
(but within the time specified for judicial review) and if such 
objection is of central relevance to the outcome of the rule, the 
Administrator shall 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. 
If the Administrator refuses to convene such a proceeding, such person 
may seek review of such refusal in the United States court of appeals 
for the appropriate circuit (as provided in subsection (b)). Such 
reconsideration shall not postpone the effectiveness of the rule. The 
effectiveness of the rule may be stayed pending such reconsideration, 
however, by the Administrator or the court for a period not to exceed 
three months.''
    Thus, by the terms of CAA section 307(d)(7)(B), it is clear that 
the right to seek reconsideration of a rule is afforded with respect to 
decisions that are final rulemaking actions for which judicial review 
may be obtained under CAA section 307(b)(1) and which have some final 
effect that could potentially be stayed by either a court or by the 
Administrator. EPA may not be required to reconsider non-final actions, 
such as non-binding guidance discussions, for which judicial review is 
not otherwise available and which do not themselves take effect at any 
time. Moreover, the requirement to convene a proceeding to reconsider a 
rule is based on the petitioner demonstrating to EPA both: (1) That it 
was impracticable to raise the objection during the comment period, or 
that the grounds for such objection arose after the comment period but 
within the time specified for judicial review (i.e., within 60 days 
after publication of the final rulemaking notice in the Federal 
Register, see CAA section 307(b)(1)); and (2) that the objection is of 
central relevance 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 section 307(d)(7)(B) does not provide a forum 
to request EPA to reconsider issues that actually were raised, or could 
have been raised, prior to promulgation of the final rule.
    In EPA's view, an objection is of central relevance to the outcome 
of the rule only if it provides substantial support for the argument 
that the promulgated regulation should be revised. See, e.g., EPA's 
Denial of the Petitions to Reconsider the Endangerment and Cause or 
Contribute Findings for Greenhouse Gases under Section 202 of the Clean 
Air Act, 75 FR 49556, 49561 (Aug. 13, 2010). This interpretation is 
appropriate in light of the criteria adopted by Congress in this and 
other provisions in section 307(d). Section 307(d)(4)(B)(i) provides 
that ``[a]ll documents which become available after the proposed rule 
has been published and which the Administrator determines are of 
central

[[Page 4787]]

relevance to the rulemaking shall be placed in the docket as soon as 
possible after their availability.'' This provision draws a distinction 
between comments and other information submitted during the comment 
period, and other documents which become available after publication of 
the proposed rule. The former are docketed irrespective of their 
relevance or merit, while the latter must be docketed only if a higher 
hurdle of central relevance to the rulemaking is met.
    Congress also used the phrase ``central relevance'' in sections 
307(d)(7)(B) and (d)(8), and by reference in (d)(9)(D), and in each 
case Congress set a more stringent hurdle than in section 307(d)(4). 
Under section 307(d)(7)(B), the Administrator is required to reconsider 
a rule only if the objection is ``of central relevance to the outcome 
of the rule.'' Likewise, section 307(d)(8) authorizes a court to 
invalidate a rule for procedural errors only if the errors were ``so 
serious and related to matters of such central relevance to the rule 
that there is a substantial likelihood that the rule would have been 
substantially changed if such errors had not been made.'' Section 
307(d)(9)(D) then applies both the section 307(d)(7)(B) and (d)(8) 
requirements in limiting a court's ability to reverse an EPA final 
action found to be without observance of procedure required by law. In 
each of these provisions, it is not enough that the objection or error 
be of central relevance to the issues involved in the rulemaking, as in 
section 307(d)(4). Instead, the objection has to be of central 
relevance ``to the outcome of the rule'' itself, and the procedural 
error has to be of such central relevance that it presents a 
``substantial likelihood that the rule would have been substantially 
changed.'' Central relevance to the issues involved in the rulemaking 
is not enough to meet the criteria Congress set under sections 
307(d)(7)(B), (d)(8) or (d)(9)(D). These provisions all require that 
the objection or error be central to the substantive final decision 
that is the outcome of the rulemaking and that is taking effect. This 
difference is significant, and indicates that Congress set a much 
higher hurdle for disturbing a final rule that has already been issued, 
as compared to the less stringent criteria for docketing of documents 
before a decision has been made and a rule has been issued.
    In this context, EPA's interpretation of section 307(d)(7)(B) gives 
full and appropriate meaning to the criteria adopted by Congress. An 
objection is considered of central relevance to the outcome of the rule 
only if it provides substantial support for the argument that the final 
promulgated regulation should be revised. This properly links the 
criteria to the promulgated outcome of the rulemaking, not just to the 
issues addressed in the rulemaking which may or may not have influenced 
that final action taken by EPA. It requires that the objection be of 
such substance and merit that it can be considered central to the final 
outcome of the rulemaking. This interpretation is consistent with 
section 307(d)(8), which also ties central relevance to the outcome of 
the rulemaking, in terms of a ``substantial likelihood'' that the 
promulgated rule would be ``substantially changed,'' and with section 
307(d)(9)(D), which assumes that the objection regard an ``action'' 
that a court ``may reverse'' and for which a ``procedure required by 
law'' exists. This interpretation gives proper weight to the approach 
throughout sections 307(b) and (d) of the importance Congress 
attributed to preserving the finality of agency rulemaking decisions, 
once they have in fact been made. This interpretation is also 
consistent with the case law, as discussed below.
    As discussed in this decision, EPA is denying the petitions because 
they fail to meet these criteria. At the outset, the objections raised 
in the petitions to reconsider all regard non-final, non-binding 
guidance discussion that is not final rulemaking action that is ripe 
for either judicial review or for reconsideration. Additionally, in all 
cases the objections are not of central relevance to the outcome of the 
rule because they do not provide substantial support for the argument 
that the final SO2 Primary NAAQS should be revised. 
Moreover, the objections raised in the petitions regard issues that 
were or could have been raised during the comment period of the NPRM. 
Parts III-V of this decision explain why EPA is denying the petitions 
with respect to the objections set forth in these petitions for 
reconsideration. For some of these issues, the petitioners have not met 
the procedural predicate for reconsideration. That is, the petitioners 
have not demonstrated that it was impracticable to raise these 
objections during the comment period, or that the grounds for these 
objections arose after the close of the comment period but within 60 
days after publication of the final rule. As such, they do not meet the 
statutory criteria for administrative reconsideration under CAA section 
307(d)(7)(B). For all of the objections, the petitioners' objections 
and argument in terms of substance are not ``of central relevance'' to 
the outcome of the promulgated rulemaking establishing the revised 
NAAQS. Moreover, the objections regard discussion in the preamble that 
is not final action at all, and therefore EPA concludes that the non-
binding discussion cannot arguably be considered either of central 
relevance to the promulgated SO2 NAAQS or something that EPA 
was required to provide pursuant to section 307(d)'s procedural 
requirements. Thus, none of the objections meet the criteria for 
reconsideration under the CAA.
    EPA also rejects TCEQ's claim that EPA should reconsider the final 
rule under section 557 of the Administrative Procedure Act (APA), even 
if the criteria for reconsideration under CAA section 307(d)(7)(B) are 
not met (TCEQ at 4). First, CAA section 307(d)(1) provides that APA 
sections 553 through 557 do not, except as expressly provided in 
section 307(d), apply to actions to which CAA section 307(d) applies, 
such as promulgation of a NAAQS (see CAA section 307(d)(1)(A)). Second, 
by its own terms APA section 557 applies only when a hearing is 
required to be conducted under APA section 556, which in turn applies 
only to hearings required under APA sections 553 or 554. See APA 
sections 557(a), 556(a). Since those provisions do not apply to actions 
promulgated under CAA section 307(d), APA section 557 is inapplicable.
    As mentioned above, EPA also received requests to administratively 
stay the final revised SO2 Primary NAAQS as part of the 
petitions for reconsiderations. Petitioners either tied their requests 
for an administrative stay to their petitions for reconsideration under 
CAA section 307(d)(7)(B), referred to EPA's general authority to 
prescribe such regulations as are necessary to carry out EPA's 
functions under CAA section 301(a), did not refer to any specific 
statutory authority for granting an administrative stay, or filed the 
stay request under section 705 of the Administrative Procedure Act, 5 
U.S.C. 705. As described below, EPA is denying the petitions to 
reconsider; hence there is no basis for issuance of a stay under CAA 
section 307(d)(7)(B). Nor is it necessary for EPA to grant a stay by 
rulemaking under authority of CAA section 301(a) to carry out the 
Agency's functions in denying the petitions for reconsideration. APA 
section 705 authorizes an agency to postpone the effective date of an 
agency action pending judicial review when the agency finds that 
justice so requires. In this case, the revised SO2 Primary 
NAAQS was effective as of August 23, 2010. TCEQ's request for an 
administrative stay relying upon APA section 705 was submitted by 
petition on the same day that the SO2 Primary

[[Page 4788]]

NAAQS became effective. Even if EPA believed that an administrative 
stay was warranted, which it does not, it is not clear whether EPA 
would have authority under APA section 705 to stay an agency action 
that has already gone into effect. Postponing an effective date implies 
action before the effective date arrives.
    In any case, an administrative stay of the final SO2 
Primary NAAQS is not warranted. As explained in Part VI below, in 
response to the arguments raised by petitioners, (1) the petitioners 
have not made a strong showing on the merits, for all of the reasons 
upon which EPA is denying the petitions to reconsider; (2) the 
petitioners' arguments concerning irreparable harm fail to adequately 
account for the fact that no final actions implementing the approaches 
discussed in the preamble have yet been taken under the revised NAAQS; 
(3) the petitioners' arguments do not consider the possibility of harm 
to other parties if a stay of the NAAQS were to be granted; and (4) 
granting a stay would be contrary to the public interest.

III. Administrative Process Issues

A. Summary of Petitioners' Arguments

    Petitioners' procedural objections come in several forms, with most 
petitioners raising them repeatedly. The central assumption of each 
objection is that EPA's final NAAQS rulemaking took final action on the 
discussed implementation approaches, and that the discussion and 
approaches are of central relevance to the outcome of the final revised 
SO2 Primary NAAQS. Further, petitioners often assert that 
but for the inclusion of the discussion of implementation approaches, 
which was allegedly done in a procedurally flawed manner, EPA would 
have promulgated a different revision of the SO2 Primary 
NAAQS. They claim that notice and comment rulemaking is required for 
the implementation ``aspect'' of the final NAAQS, and rely upon the 
premise that the final preamble discussion constitutes final agency 
action on such an allegedly required aspect.
    Several petitioners argued that EPA gave no indication in the NPRM 
that the Agency might ``reduce the role of monitoring'' in NAAQS 
attainment designations or that modeling might play a greater role in 
SO2 NAAQS implementation, or that the requirements of CAA 
section 110(a)(1) might be interpreted or implemented differently than 
in the past. See UARG at 13-14, 22-25; NEDA/CAP at 3-4; ASARCO at 2-4, 
4-6, 6-8, 8-10; MSCC at 1-2, 3-6, 6-9; TCEQ at 4, 11-14; ND and SD at 
7-8, 8-9; WVDEP at 1, 2; ADEQ at 1. Consequently, the petitioners claim 
the final preamble's implementation discussion deviates too sharply 
from the NPRM to ``logically follow'' from the proposal without first 
undergoing notice and comment procedures, as petitioners claim is 
required by Sm