[Federal Register Volume 75, Number 72 (Thursday, April 15, 2010)]
[Proposed Rules]
[Pages 19567-19575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7534]


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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.

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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:
     http://www.regulations.gov. Follow the online instructions 
for submitting comments.
     E-mail: [email protected].
     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 http://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 http://www.regulations.gov or e-
mail. The http://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 http://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 http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, 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 http://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: [email protected].
    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: [email protected].

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\
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    \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.
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    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.
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    \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.
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    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.
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    \4\ John Walke, Natural Resources Defense Council, EPA-HQ-OAR-
2003-0064-0116.1.
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    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.
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    \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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    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.
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    \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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    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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