[Federal Register Volume 80, Number 160 (Wednesday, August 19, 2015)]
[Proposed Rules]
[Pages 50250-50261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20506]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 56

[EPA-HQ-OAR-2014-0616; FRL-9929-98-OAR]
RIN 2060-AS53


Amendments to Regional Consistency Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to 
revise its Regional Consistency regulations to ensure the EPA has the 
flexibility necessary to implement Clean Air Act (CAA or Act) programs 
on a national scale while addressing court rulings that concern certain 
agency actions under the Act. In addition, the proposed revisions would 
help to foster overall fairness and predictability regarding the scope 
and impact of judicial decisions under the CAA.

DATES: Comments must be received on or before October 19, 2015.
    Public hearing. If requested by September 3, 2015, then we will 
hold a public hearing. Additional information about the hearing, if 
requested, will be published in a subsequent Federal Register document.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0616, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. The 
EPA may publish any comment received to its public docket. Do not 
submit electronically any information you consider to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. If you need to include CBI as part of your 
comment, please visit http://www.epa.gov/dockets/comments.html for 
instructions. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. For additional submission methods, the full EPA public comment 
policy, and general guidance on making effective comments, please visit 
http://www.epa.gov/dockets/comments.html.

FOR FURTHER INFORMATION CONTACT: For technical information, contact 
Greg Nizich, Air Quality Policy Division, Office of Air Quality 
Planning and Standards (C504-03), Environmental Protection Agency, 
Research Triangle Park, North Carolina 27711; telephone number (919) 
541-3078; fax number (919) 541-5509; email 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, Office of Air Quality Planning and Standards (C504-01), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-0641; fax number (919) 541-5509; 
email address: [email protected].

SUPPLEMENTARY INFORMATION:
    Regulated entities. The Administrator determined that this action 
is subject to the provisions of CAA section 307(d). See CAA section 
307(d)(1)(V) (the provisions of CAA section 307(d) apply to ``such 
other actions as the Administrator may determine). These are amendments 
to existing regulations and could affect your facility if it is the 
subject of a CAA-related ruling by a federal court.
    The information in this SUPPLEMENTARY INFORMATION section of this 
preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
    C. Where can I get a copy of this document and other related 
information?
    D. How can I find information about a possible public hearing?
    E. What acronyms, abbreviations and units are used in this 
preamble?
II. Purpose
III. Background
    A. Purpose of the Regional Consistency Regulations
    B. Establishing the Regional Consistency Regulations
    C. Reasons for Revising the Regional Consistency Regulations
IV. Proposed Revisions to the Regional Consistency Rule

[[Page 50251]]

    A. What are the proposed revisions to the 40 CFR part 56 
Regional Consistency Regulations?
    B. What is the basis for the EPA's approach?
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory 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
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Determination Under Section 307(d)
VII. Statutory Authority

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this proposal include the 
EPA and other governments that are delegated administrative authority 
to assist the EPA with the implementation of air program federal 
regulations. Entities potentially affected indirectly by this proposal 
include owners and operators of sources of air emissions that are 
subject to CAA regulations.

B. What should I consider as I prepare my comments for the EPA?

1. Submitting CBI
    Do not submit this information to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. Send or deliver information 
identified as CBI only to the following address: Tiffany Purifoy, OAQPS 
Document Control Officer (C404-02), Environmental Protection Agency, 
Research Triangle Park, NC 27711, Attention: Docket ID No. EPA-HQ-OAR-
2014-0616.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this proposed rule will also be available on the World Wide Web. 
Following signature by the EPA Administrator, a copy of this proposed 
rule will be posted in the regulations and standards section of our New 
Source Review (NSR) Web site, under Regulations & Standards, at http://www.epa.gov/nsr.

D. How can I find information about a possible public hearing?

    To request a public hearing or information pertaining to a public 
hearing on this document, contact Ms. Pamela Long, Air Quality Policy 
Division, Office of Air Quality Planning and Standards (C504-03), 
Environmental Protection Agency, Research Triangle Park, North Carolina 
27711; telephone number (919) 541-0641; fax number (919) 541-5509; 
email address: [email protected].

E. What acronyms, abbreviations and units are used in this preamble?

    The following acronyms, abbreviations and units are used in this 
preamble:

CAA or Act Clean Air Act
EPA U.S. Environmental Protection Agency
FIP Federal Implementation Plan
ICR Information Collection Request
NSR New Source Review
NTTAA National Technology Transfer and Advancement Act
OMB Office of Management and Budget
PSD Prevention of Significant Deterioration
RFA Regulatory Flexibility Act
SBA Small Business Administration
SIP State Implementation Plan
UMRA Unfunded Mandates Reform Act

II. Purpose

    The purpose of this rulemaking is to revise the EPA's Regional 
Consistency regulations--40 CFR part 56. Specifically, we are proposing 
to add a provision to the Regional Consistency regulations to 
accommodate the implications of federal court decisions that result 
from challenges to locally or regionally applicable actions. As 
explained more fully below, revising the Regional Consistency 
regulations to accommodate the implications of such federal court 
decisions is consistent with general principles of common law, the 
judicial review provisions of the CAA, and CAA section 301(a)(2). 
Furthermore, the proposed revisions will help to foster overall 
fairness and predictability regarding the scope and impact of judicial 
decisions under the CAA.

III. Background

A. Purpose of the Regional Consistency Regulations

    The CAA calls for the EPA to implement the Act in partnership with 
state, local and tribal governments. See Mountain States Legal Found. 
v. Costle, 630 F.2d 754, 757 (10th Cir. 1980). While the roles of that 
partnership vary depending on the nature of the air pollution problem, 
generally the EPA issues national standards or federal requirements to 
address air pollution, and state, local and tribal air agencies 
(hereinafter referred to simply as ``air agencies'') assume primary 
responsibility for implementing those standards and requirements. For 
example, the Act requires the EPA to establish, review and revise 
national ambient air quality standards (NAAQS) for certain common air 
pollutants. The Act then assigns air agencies responsibility for 
developing enforceable state implementation plans (SIPs) to meet those 
standards. The EPA is required to review each SIP to

[[Page 50252]]

determine if it meets all of the applicable requirements of the CAA. If 
the SIP is approved, the air agency will implement the SIP in order to 
provide for attainment and maintenance of the NAAQS in areas under its 
jurisdiction. The EPA will provide technical and policy assistance to 
the air agency and also maintain an oversight role to ensure that the 
program is adequately implemented and enforced. If the EPA finds that 
an air agency has failed to submit a required SIP, or that an air 
agency's SIP is incomplete, or if the EPA disapproves a SIP in whole or 
in part, the CAA requires that the EPA promulgate a federal 
implementation plan (FIP) to provide for attainment and maintenance of 
the NAAQS in the corresponding area. The Act also requires 
preconstruction permits for major new and modified stationary sources 
of air pollution. In most areas, air agencies serve as the CAA 
permitting authority under an approved SIP; some air agencies implement 
the federal program under a delegation agreement; elsewhere, the EPA is 
the permitting authority under a FIP.
    How the EPA carries out its role in this cooperative partnership 
under the CAA is influenced by how the EPA is organized. The EPA is 
composed of various headquarters offices, each of which is responsible 
for nationwide execution of our programs, and ten regional offices, 
each of which is responsible for the execution of our programs within 
several states and territories. See 40 CFR part 1, subparts A and C 
(for more information, see the EPA Organizational Chart located at 
http://www2.epa.gov/aboutepa/epa-organization-chart). In carrying out 
responsibilities under the CAA, the EPA Administrator relies on input 
from various offices in headquarters, especially those within the 
Office of Air and Radiation, and in the regional offices. In fact, the 
CAA provides the EPA Administrator with the authority to delegate 
powers and duties necessary to carry out the Act to EPA officials in 
both the headquarters and regional offices (CAA section 301(a)(1)). 
Returning to the NAAQS example, headquarters offices take the lead in 
promulgating the NAAQS, while regional offices are primarily 
responsible for working directly with air agencies to assist them in 
their SIP submissions and approval or disapproval of such SIPs. In 
certain circumstances, headquarters and regional offices consult in 
developing a proposed and/or final decision regarding approval or 
disapproval of the SIP.

B. Establishing the Regional Consistency Regulations

    In the 1977 CAA Amendments, Congress added section 301(a)(2) (42 
U.S.C. 7601) in recognition of the role that staff from both 
headquarters and regions played in carrying out the Act's programs. CAA 
section 301(a)(2) required the EPA Administrator to promulgate 
regulations ``establishing general applicable procedures and policies'' 
for the EPA regional officers and employees to follow when carrying out 
activities delegated to them under the Act. Among other things, the CAA 
stated that these regulations should ``assure fairness and uniformity 
in the criteria, procedures, and policies applied'' by the EPA regional 
offices in their CAA activities and ``provide a mechanism'' to identify 
and standardize any inconsistent or varying criteria, procedures, and 
policies used by the EPA employees.
    Thereafter, the EPA took a number of actions to promulgate the 
Regional Consistency regulations required in CAA section 301(a)(2). In 
1978, the EPA issued an Advanced Notice of Proposed Rulemaking seeking 
comment on a number of consistency issues and inviting interested 
persons to participate in a series of public workshops to discuss the 
development of the Regional Consistency regulations (43 FR 4872). In 
1979, after receiving those comments and listening to input provided at 
the public workshops from representatives of industry, state, and 
public interest groups, the EPA issued its Notice of Proposed 
Rulemaking for the Regional Consistency regulations (44 FR 13043). 
Finally, in 1980, the EPA promulgated its final Regional Consistency 
regulations in 40 CFR part 56.
    As the EPA explained when it finalized the regulations, the 
``intended effect'' of these regulations was ``to assure fair and 
consistent application of rules, regulations and policy throughout the 
country by assuring that the action of each individual EPA Regional 
Office is consistent with one another and national policy'' (45 FR 
85400). Generally, the Regional Consistency regulations: (1) State the 
EPA policy of assuring ``fair and uniform'' application of the EPA 
rules, procedures, and policies necessary to implement and enforce the 
Act (see 56 CFR 56.3); (2) provide mechanisms for such application by 
headquarters and regional office employees (see 56 CFR 56.4 and 56.5, 
respectively); (3) require various headquarters offices to establish 
systems to disseminate policy and guidance relating to air programs 
(see 56 CFR 56.6); and (4) utilize the existing grants program for 
yearly evaluations of state performance in implementing and enforcing 
the Act (see 56 CFR 56.7).
    The EPA has been acting under these regulations for more than 30 
years to address consistency issues regarding various CAA programs, 
policy, and guidance. In this document, we are proposing to revise the 
rules to address a very specific consistency issue--how to treat 
Federal court decisions regarding locally or regionally applicable 
actions that may affect consistent application of national programs, 
policy, and guidance.

C. Reasons for Revising the Regional Consistency Regulations

    The EPA is undertaking this proposed revision to the Regional 
Consistency regulations, in part, as a result of a recent decision of 
the U.S. Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit Court) in National Environmental Development Association's 
Clean Air Project v. EPA, No. 13-1035 (D.C. Cir., May 30, 2014). That 
litigation involved a December 2012 memorandum from EPA headquarters to 
the EPA regions regarding the limited scope of a court decision issued 
by the Sixth Circuit Court of Appeals addressing the EPA's 
interpretation of national permitting regulations as applied to a 
specific, local permitting decision.\1\ See Memorandum from Stephen D. 
Page, Director of the EPA's Office of Air Quality Planning and 
Standards, to Regional Air Division Directors, titled Applicability of 
the Summit Decision to the EPA Title V and NSR Source Determinations 
(December 21, 2012; available at http://www.epa.gov/region7/air/title5/t5memos/inter2012.pdf) (hereinafter, ``December 2012 memorandum''). The 
December 2012 memorandum reflected the EPA application of a widely 
recognized legal doctrine referred to as intercircuit nonaquiescence, a 
practice in which a decision by a federal circuit

[[Page 50253]]

court is binding only in those areas (in this case, specific states and 
the associated EPA regions) subject to the direct jurisdiction of the 
ruling circuit court. Intercircuit nonaquiescence is a practice that 
the EPA has historically followed with regard to decisions issued by 
both circuit and district courts and arising in local, non-nationwide 
actions.\2\ Therefore, in the December 2012 memorandum, the EPA 
continued that historic practice and noted that while the agency would 
follow the Sixth Circuit's decision in those states under the 
jurisdiction of the Sixth Circuit, the agency's longstanding 
interpretation of the permitting regulations addressed by the Sixth 
Circuit decision would continue to apply nationwide outside the Sixth 
Circuit.
---------------------------------------------------------------------------

    \1\ That decision, Summit Petroleum Corp. v. EPA et al., 
Consolidated Case Nos. 09-4348 and 10-4572 (6th Cir. Aug. 7, 2012), 
addressed the scope of the term ``adjacent'' as used in the EPA's 
source determination regulations in the title V permitting program, 
which are similar to the source determination regulations used in 
the new source review and prevention of significant deterioration 
permitting programs, see 40 CFR 52.21(b)(6) and 71.2. The EPA is 
currently planning a separate rulemaking to address the term 
``adjacent'' in those permitting regulations, and we direct any 
commenters wishing to address the Summit decision or those 
regulations to do so in that separate action. See http://resources.regulations.gov/public/component/main?_dmfClientId=1434045425242&_dmfTzoff=240 for the EPA's Spring 
2015 Regulatory Agenda item titled, Source Determination for Certain 
Emissions Units in the Oil and Natural Gas Sector, RIN 2060-AS06.
    \2\ While intercircuit nonaquiescence is generally focused on 
circuit court decisions, the general principle also applies to 
decisions issued by district courts, which are by their very nature 
limited in scope, as discussed later in this preamble. For ease of 
discussion, this preamble will generally use ``intercircuit 
nonaquiescence'' to address locally and regionally applicable 
decisions issued by both circuit and district federal courts.
---------------------------------------------------------------------------

    On February 19, 2013, the National Environmental Development 
Association's Clean Air Project (NEDACAP) filed a petition for review 
with the D.C. Circuit Court on the December 2012 memorandum. NEDACAP 
alleged that the December 2012 memorandum violated both CAA section 
301(a)(2) and the EPA's Regional Consistency regulations by 
establishing inconsistent permit criteria in different parts of the 
country.
    In May 2014, the D.C. Circuit Court issued a decision vacating the 
December 2012 memorandum. The D.C. Circuit Court agreed with NEDACAP 
that the memorandum was inconsistent with the EPA's Regional 
Consistency regulations located at 40 CFR part 56.\3\ The court found 
that the Regional Consistency regulations ``strongly articulate the 
EPA's firm commitment to national uniformity in the applications of its 
permitting rules'' without any indication that ``EPA intended to exempt 
variance created by a judicial decision.'' Slip op. at 17. The D.C. 
Circuit concluded that the EPA's current regulations ``preclude EPA's 
intercircuit nonaquiescence in this instance. . . .'' Slip op. at 19.
---------------------------------------------------------------------------

    \3\ The D.C. Circuit Court did not reach NEDACAP's argument that 
the memorandum was also inconsistent with the CAA.
---------------------------------------------------------------------------

    The D.C. Circuit Court presented three options that the EPA could 
pursue in response to an adverse decision: Revise the underlying 
regulation; appeal the decision; or revise the Regional Consistency 
regulations. By making the revisions proposed in this rulemaking, the 
EPA is following one of the options suggested by the court. Slip op. at 
18.
    First, the court suggested that the EPA consider revising the 
underlying regulations at issue in the Sixth Circuit decision. Id While 
this approach may resolve the narrow issue that is the subject of the 
Sixth Circuit decision, and the EPA is in fact in the process of 
revising the permitting regulations that were the subject of the Sixth 
Circuit Court decision and the December 2012 memorandum, this approach 
generally would require a new rulemaking following each adverse court 
decision regarding an issue of local applicability. Each national 
rulemaking of this nature would likely take more than a year--and 
possibly several years--to complete. By revising the EPA's Regional 
Consistency regulations to fully allow for intercircuit nonaquiescence, 
the agency can through one rulemaking save the considerable time and 
resources potentially required by several narrow rulemakings.
    Second, the court suggested that the EPA could have appealed the 
Sixth Circuit decision to the U.S. Supreme Court. Slip op. at 18. 
However, because the U.S. Supreme Court grants only about one percent 
of the petitions for certiorari (i.e., a petition requesting review of 
a lower court's decision) filed each year, there is a strong likelihood 
that the U.S. Supreme Court would decline to review a lower court's 
decision.\4\ Were we to rely solely on this option, absent review by 
the U.S. Supreme Court, a single federal court decision regarding an 
action of local applicability could change the EPA's policy nationwide 
unless and until the EPA undertook a rulemaking (see first option 
above). As discussed further below, this outcome would be inconsistent 
with the judicial review provisions of CAA section 307(b)(1).
---------------------------------------------------------------------------

    \4\ See http://dailywrit.com/2013/01/likelihood-of-a-petition-being-granted/ which cites the following statistics: Petitions 
granted overall in the 2011-2012 term: .862 percent, and in the 
2012-2013 term: 1.03 percent.
---------------------------------------------------------------------------

    Third, the court suggested that the EPA could revise the Regional 
Consistency regulations ``to account for regional variances created by 
judicial decisions or circuit splits.'' Slip op. at 18. This proposed 
rulemaking follows this option because we believe it most effectively 
addresses the issue presented by an adverse federal court decision 
addressing an action of local or regional applicability. As discussed 
further below, this proposed revision also would accommodate the EPA's 
proper and longstanding application of the doctrine of intercircuit 
nonaquiescence in future cases while eliminating the need for several 
lengthy, narrow rulemakings or review of a lower court's decision by 
the U.S. Supreme Court.

IV. Proposed Revisions to the Regional Consistency Rule

    This section discusses the proposed revisions to the Regional 
Consistency regulations and our rationale for proposing those changes. 
We solicit public comment on the changes being proposed and will 
consider those comments in developing the final rule.

A. What are the proposed revisions to the 40 CFR part 56 Regional 
Consistency Regulations?

    In this action, we propose three specific revisions to the general 
consistency policy put forward in the existing Regional Consistency 
regulations, 40 CFR part 56, to accommodate the implications of 
judicial decisions addressing ``locally or regionally applicable'' 
actions. Specifically, we propose to revise 40 CFR 56.3 to add a 
provision to acknowledge an exception to the ``policy'' of uniformity 
to provide that a decision of a federal court that arises from a 
challenge to ``locally or regionally applicable'' actions would not 
apply uniformly nationwide, and that only decisions of the U.S. Supreme 
Court and decisions of the D.C. Circuit Court that arise from 
challenges to ``nationally applicable regulations . . . or final 
action'' would apply uniformly nationwide. We also propose to revise 40 
CFR 56.4 to add a provision to clarify that EPA headquarters offices' 
employees would not need to issue mechanisms or revise existing 
mechanisms developed under 40 CFR 56.4(a) to address federal court 
decisions arising from challenges to ``locally or regionally 
applicable'' actions. Lastly, we propose to revise 40 CFR 56.5(b) to 
clarify that EPA regional offices' employees would not need to seek 
headquarters office concurrence to act inconsistently with national 
policy or interpretation if such action is required by a federal court 
decision arising from challenges to ``locally or regionally 
applicable'' actions. In other words, through this rulemaking, the 
agency would be authorizing a region to act inconsistently with 
nationwide policy or interpretation to the extent that the region must 
do so in order to act consistently with a decision issued by a federal 
court that has direct jurisdiction over the region's action.
    The manner in which the proposed revisions would affect the EPA's 
operational consistency may be explained by way of example related to a 
challenge to the title V applicability determination made by EPA Region 
5

[[Page 50254]]

for Summit Petroleum's oil and gas operations on tribal land in 
Michigan. This challenge led to the December 2012 memorandum reviewed 
in the D.C. Circuit Court's NEDACAP decision. In the course of a 
source-specific title V permitting action, EPA Region 5 had determined 
that Summit Petroleum's oil and gas production wells and gas sweetening 
plant should be considered adjacent, based on their proximity and 
interrelatedness to one another, and thus emissions from these units 
were aggregated into a single source for title V permitting purposes 
(see 40 CFR 71.2). Summit Petroleum challenged that determination in 
the Sixth Circuit, and the court ultimately issued a decision that 
vacated and remanded Region 5's determination. Summit Petroleum Corp. 
v. U.S. EPA, 690 F3d 733 (6th Cir. 2012). Although the EPA argued that 
its longstanding interpretation of ``adjacent'' as used in the source 
determination regulations included consideration of an activities' 
functional interrelatedness, see id. at 744-75 (noting the EPA's 
citation to nine such source determinations spanning more than 30 
years), the Sixth Circuit found that the term ``adjacent'' as used in 
the EPA's source determination regulations was unambiguous and related 
only to physical proximity, and thus could not include consideration of 
functional interrelatedness, see id. at 741-744. The EPA sought 
rehearing of the Summit case, but the request was ultimately denied on 
October 29, 2012.
    Thereafter, a number of EPA regional offices sought guidance from 
headquarters offices regarding the impact of the Summit decision on 
various permitting actions, sometimes in an effort to answer questions 
they were receiving from state permitting authorities and permittees. 
Accordingly, in December 2012, an official in EPA headquarters issued a 
memorandum to the Air Division Directors at the EPA's regional offices 
explaining the applicability of the Summit decision to other EPA title 
V and NSR source determinations.\5\ The December 2012 memorandum 
described briefly the determination at issue in the Summit case, and 
the Sixth Circuit's decision. It explained that under the court's 
decision, the EPA could no longer consider interrelatedness in 
determining the adjacency of different emissions units in title V or 
NSR permitting decisions within the Sixth Circuit's jurisdiction (i.e., 
Michigan, Ohio, Tennessee and Kentucky). The December 2012 memorandum 
noted that the agency was ``still assessing how to implement this 
decision in its permitting actions in the 6th Circuit,'' and explained 
that outside the Sixth Circuit, the EPA intended to continue to apply 
its longstanding approach of considering both the proximity and 
interrelatedness of operations in determining whether emissions units 
are ``adjacent'' for permitting purposes.
---------------------------------------------------------------------------

    \5\ Memorandum from Stephen Page, Director of the EPA's Office 
of Air Quality Planning and Standards to the Air Division Directors. 
(Titled, Applicability of the Summit Decision to the EPA Title V and 
NSR Source Determinations; available at http://www.epa.gov/region7/air/title5/t5memos/inter2012.pdf)
---------------------------------------------------------------------------

    If the proposed revisions to the Regional Consistency regulations 
had already been in place, this type of memorandum from EPA 
headquarters would not have been necessary because regions, states, and 
other potentially affected entities would have had certainty and 
predictability regarding the application of such a judicial decision--
they would have known that this type of permit-specific, local and 
regional decision would only apply in the areas under the jurisdiction 
of the Sixth Circuit. Accordingly, with the changes proposed, it would 
have been clear to everyone that EPA regions would not be bound to 
apply the findings of the Summit decision in states outside the Sixth 
Circuit, and could continue to apply the longstanding practice that had 
not been successfully challenged in other federal circuit courts in 
their regions or decided nationally by the D.C. Circuit Court or U.S. 
Supreme Court.
    If the proposed revisions to the Regional Consistency regulations 
are finalized, it will be clear that an adverse federal court decision 
in a case regarding locally or regionally applicable actions does not 
apply nationwide. As soon as these regulatory changes are effective, 
the EPA regional offices that are outside of the jurisdiction of a 
court will be able to apply the agency's nationwide practices in a 
consistent manner in any actions they take going forward, and they will 
not need to seek concurrence from headquarters offices for that 
continued application. Likewise, under the revised regulations, it 
would be clear that any such adverse decision that is or has been 
issued would be applied to those areas or parties that are under the 
issuing court's jurisdiction in any regional actions going forward. 
Moreover, those regions would not need to seek concurrence from EPA 
headquarters offices in order to follow the relevant decision, even if 
doing so would mean they were acting inconsistently with other EPA 
regional offices or national policy.
    Note that these proposed regulatory changes, if finalized, would 
only apply to activities conducted at EPA offices (both regional and 
headquarters) and also to states delegated to implement EPA rules. The 
proposed revisions would not affect a state implementing its SIP-
approved program, as they are bound to follow their own regulations.

B. What is the basis for the EPA's approach?

    In this rulemaking action, we are proposing to revise 40 CFR part 
56 to ``account for regional variances created by a judicial decision 
or circuit splits'' by creating a specific accommodation to the general 
policy of uniformity of EPA actions. As explained more fully below, 
revising the Regional Consistency regulations to accommodate federal 
circuit and district court decisions that result from challenges to 
locally or regionally applicable actions, and thus providing for 
intercircuit nonaquiescence, is consistent with general principles of 
common law, CAA sections 301(a)(2) and 307(b)(1). It will also help to 
foster overall fairness and predictability regarding the scope and 
impact of judicial decisions under the CAA, and is a reasonable 
extension of the EPA's existing part 56 regulations.
1. Accommodating Intercircuit Nonaquiescence in the Regional 
Consistency Regulations Is Consistent With General Principles of Common 
Law
    Federal courts are courts of limited jurisdiction; they have only 
the authority to hear and decide cases granted to them by Congress. See 
generally U.S. Constitution, Article II, Section 1 (``The judicial 
Power of the United States, shall be vested in one supreme Court, and 
in such inferior Courts as the Congress may from time to time ordain 
and establish.''). Thus, Congress must grant a federal court subject 
matter jurisdiction over the type of dispute in question.
    A court of appeals generally hears appeals from the district courts 
located within its circuit, and the circuit is delineated by the states 
it contains. See generally 28 U.S.C. 41 (establishing the number and 
composition of the thirteen circuits; the composition is denoted by the 
names of states in a circuit).\6\ As a general matter, while an opinion 
from one circuit court of appeals may be persuasive precedent, it is 
not binding on other courts of appeals. See Hart v. Massanari, 266 F. 
3d 1155, 1172-73 (9th

[[Page 50255]]

Cir. 2001). As the Ninth Circuit explained, ``[T]here are also very 
important differences between controlling and persuasive authority. As 
noted, one of these is that, if a controlling precedent is determined 
to be on point, it must be followed. Another important distinction 
concerns the scope of controlling authority. Thus, an opinion of our 
court is binding within our circuit, not elsewhere in the country. The 
courts of appeals, and even the lower courts of other circuits, may 
decline to follow the rule we announce--and often do. This ability to 
develop different interpretations of the law among the circuits is 
considered a strength of our system. It allows experimentation with 
different approaches to the same legal problem, so that when the 
Supreme Court eventually reviews the issue it has the benefit of 
``percolation'' within the lower courts.'' Id. (emphasis added). This 
last point is critical to an effective federal judiciary. By revising 
the regulations in part 56 to fully accommodate intercircuit 
nonaquiescence, the EPA is acting consistently with the purpose of the 
federal judicial system by allowing the robust percolation of case law 
through the circuit courts until such time as U.S. Supreme Court review 
is appropriate. The vast majority of cases that the U.S. Supreme Court 
hears arise from circuit splits.\7\ Thus, revising the Regional 
Consistency regulations to accommodate intercircuit nonaquiescence 
advances the federal judiciary's ability to experiment with different 
approaches to similar legal problems, and the development of a circuit 
split that could eventually lead to U.S. Supreme Court review of 
important issues under the CAA.
---------------------------------------------------------------------------

    \6\ The exception is the Federal Circuit, which hears certain 
types of cases from anywhere in the country.
    \7\ See Ryan Stephenson, Federal Circuit Case Selection at the 
U.S. Supreme Court: An Empirical Analysis, 102 Georgetown L.J. 272, 
273 (2013) (``As many as 70% of the cases before the Court where 
certiorari has been granted present clear conflicts between either 
the federal courts of appeals or state courts of last resort.'').
---------------------------------------------------------------------------

    As the U.S. Supreme Court has explained, circuit splits are a 
common and acknowledged aspect of the federal legal system. E. I. du 
Pont de Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977) (there is 
wisdom in ``allowing difficult issues to mature through full 
consideration by the courts of appeals''). With regard to judicial 
consideration of the actions and decisions of federal agencies, a judge 
on the D.C. Circuit Court has noted that ``after one circuit has 
disagreed with its position, an agency is entitled to maintain its 
independent assessment of the dictates of the statutes and regulations 
it is charged with administering, in the hope that other circuits, the 
U.S. Supreme Court, or Congress will ultimately uphold the agency's 
position.'' Indep. Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248, 
1261 (D.C. Cir. 1996) (J. Rogers, dissenting). Likewise, legal scholars 
have explained that ``compel[ling] an agency to follow the adverse 
ruling of a particular court of appeals would be to give that court 
undue influence in the intercircuit dialogue by diminishing the 
opportunity for other courts of proper venue to consider, and possibly 
sustain, the agency's position.'' S. Estreicher & R. Revesz, 
Nonaquiescence by Federal Administrative Agencies, 98 Yale L. J. 679, 
764 (Feb.1989). As the U.S. Supreme Court has noted, preventing the 
government from addressing an issue in more than one forum ``would 
substantially thwart the development of important questions of law by 
freezing the first final decision rendered on a particular legal 
issue.'' United States v. Mendoza, 464 U.S. 154, 160 (1984). In light 
of this important function, the U.S. Supreme Court has sought to 
preserve government discretion to relitigate an issue across different 
circuits. Id. at 163. Thus, though circuit conflict may undermine 
national uniformity of federal law to some degree for some period of 
time, it also advances the quality of decisions interpreting the law 
over time. See generally Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 
44 F.3d 437, 446 (7th Cir. 1994) (J. Easterbrook, concurring) (agencies 
and courts balance whether ``it is more important that the applicable 
rule of law be settled'' or ``that it be settled right'') (internal 
quotation and citation omitted).
2. Accommodating Intercircuit Nonaquiescence in the Regional 
Consistency Regulations Is Consistent With the CAA's Judicial Review 
Provisions
    We are also proposing these revisions to ensure that the Regional 
Consistency regulations are in harmony with the CAA's judicial review 
provisions. Congress specifically addressed in the CAA the ability of 
the various courts of appeals to hear appeals of decisions of the EPA. 
Congress created a very specific system of judicial review to address 
how the CAA is implemented. Specifically, Congress granted the 
authority to review agency actions of nationwide applicability under 
the CAA only to the D.C. Circuit Court. In 1977, at the same time it 
added the directive for the EPA to promulgate what would ultimately 
become the Regional Consistency regulations, Congress amended the Act 
to ensure that the D.C. Circuit Court, and no other circuit courts, 
would review nationally applicable regulations. Specifically, CAA 
section 307(b)(1) states that ``A petition for review of action of the 
Administrator in promulgating any national primary or secondary ambient 
air quality standard, any emission standard or requirement under 
section 112, any standard of performance or requirement under section 
111, any standard under section 202 (other than a standard required to 
be prescribed under section 202(b)(1)), any determination under section 
202(b)(5), any control or prohibition under section 211, any standard 
under section 231, any rule issued under section 113, 119, or under 
section 120, or any other nationally applicable regulations 
promulgated, or final action taken, by the Administrator under this Act 
may be filed only in the United States Court of Appeals for the 
District of Columbia.'' CAA section 307(b)(1) (emphasis added). 
Congress then declared that other final CAA actions of the 
Administrator that are ``locally or regionally applicable may be filed 
only in the United States Court of Appeals for the appropriate 
circuit.'' Id. For example, under this system, challenges to the EPA's 
regulations addressing prevention of significant deterioration (PSD)--
which are nationally applicable--would be heard in the D.C. Circuit 
Court, while challenges to application of those PSD regulations to 
specific permitting actions--which are locally applicable--would be 
heard in the appropriate circuit court. See, e.g., Alabama Power v. 
Costle, 636 F.2d 323 (D.C. Cir. 1979) (challenge to the EPA's PSD 
rules) and Sierra Club v. EPA, 499 F.3d 653 (7th Cir. 2007) (challenge 
to the application of those rules to a specific permitting action).
    The Committee Report accompanying the bill that ultimately became 
the CAA Amendments of 1977 states that the amendments to section 
307(b)(1) make ``it clear that any nationally applicable regulations 
promulgated by the Administrator under the Clean Air Act could be 
reviewed only in the U.S. Court of Appeal for the District of 
Columbia.'' H.R.Rep. No. 95-294, p. 323 (1977). See also Harrison v. 
PPG Industries, Inc. et al., 100 S.Ct. 1889, 1896 (1980) (noting that 
the legislative history focused on the proper venue between the D.C. 
Circuit Court and other federal courts). Only ``essentially locally, 
statewide, or regionally applicable rules or orders are to be reviewed 
in U.S. court of appeals for the circuit in which such locality, State 
or region is located.'' H.R.Rep. No. 95-294,

[[Page 50256]]

at 323. The legislative history notes that in adopting this revision, 
the committee was largely approving portions of recommendation 305.76-
4(A) of the Administrative Conference of the United States, which deals 
with venue, as well as the separate statement of G. William Frick that 
accompanied the Administrative Conference's views. Id. at 324. In his 
statement, Mr. Frick stated that ``Congress intended review in the D.C. 
Circuit of `matters on which national uniformity is desirable.' Among 
the reasons for this are the D.C. Circuit's obvious expertise in 
administrative law matters and its sensitivity to Congressional 
mandates.'' 41 FR 56767, 56769 (1976). Mr. Frick went on to note that 
the D.C. Circuit Court had become quite familiar with the CAA, while 
other circuit courts lacked frequent exposure to the Act and its 
legislative history.
    By placing review of nationally applicable decisions in the D.C. 
Circuit Court alone, Congress struck the balance between the 
countervailing values of improved development of the law on the one 
hand and national uniformity on the other. By consolidating review of 
nationally applicable final agency actions in the D.C. Circuit Court, 
Congress advanced the objective of ``even and consistent national 
application'' of certain EPA regulations (and other ``final'' actions) 
that are national in scope. Oljato Chapter of Navajo Tribe v. Train, 
515 F.2d 654, 660 (D.C. Cir. 1975) (quoting S. Rep. No. 91-1196, 91st 
Cong., 2d Sess., 41(1970)). At the same time, Congress left the door 
open to intercircuit conflicts by granting jurisdiction over locally or 
regionally applicable ``final'' actions--like the applicability 
determination discussed in the example below--to the regionally-based 
courts of appeal. There is nothing in the legislative history to 
suggest that at the same time, Congress intended for the Regional 
Consistency provisions to somehow upset this careful balance and 
require the EPA to apply a locally or regionally applicable decision in 
all regions in order to maintain consistency.
    This proposal would firmly reestablish the balance that Congress 
struck in CAA section 307(b)(1), to the extent the current Regional 
Consistency regulations upset that balance. Thus, this proposal would 
ensure that only the U.S. Supreme Court and the D.C. Circuit Court 
would issue decisions with mandatory nationwide effect, which is 
consistent with the clear statutory language of CAA section 307(b)(1), 
as well as its legislative history. As explained below, there is 
nothing in the language or intent of CAA section 301(a)(2) that trumps 
the clear statutory directive of CAA section 307(b)(1) establishing 
which courts have jurisdiction over which final agency actions.\8\ 
Therefore, we believe it is reasonable for the EPA to revise the 
Regional Consistency regulations to provide a specific accommodation 
for locally and regionally applicable court decisions.
---------------------------------------------------------------------------

    \8\ Moreover, to the extent there is a conflict, a canon of 
statutory construction states that the specific--such as the 
language in CAA section 307(b)(1) addressing which courts may rule 
on issues of national applicability--trumps the general--such as the 
language in section 301(a)(2) regarding regulations on fairness and 
uniformity. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 
S. Ct. 2065, 2070-71 (2012) (`` `[I]t is a commonplace of statutory 
construction that the specific governs the general.''' quoting 
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)).
---------------------------------------------------------------------------

3. Accommodating Intercircuit Nonaquiescence in the Regional 
Consistency Regulations Is Consistent With CAA Section 301(a)(2)
    A specific accommodation for locally and regionally applicable 
court decisions also is compatible with the statutory language and 
Congressional intent of CAA section 301(a)(2). As described above, 
those provisions require the EPA Administrator to develop regulations 
to ``assure fairness and uniformity'' of agency actions. Notably, there 
is nothing in the text of CAA section 301(a)(2) or in the limited 
legislative history of that provision that would suggest Congress 
intended for the requirement to promulgate fairness and uniformity 
regulations under CAA section 301 to either upset the balance Congress 
struck when establishing judicial review provisions in CAA section 307, 
or disrupt the general principles of common law that have allowed for 
the percolation of issues up through the various circuit courts, as 
discussed above. Section 301(a)(2) of the Act does not specifically 
discuss whether the fairness and uniformity objectives must be applied 
to all court decisions; nor does it address how the agency should 
respond to adverse court decisions. Congress also did not include 
language in CAA section 301 that would expressly prohibit the EPA from 
promulgating regulations that accommodate intercircuit nonaquiescence, 
consistent with CAA section 307.
    In addition, the text of CAA section 301(a)(2)(A) necessitates a 
balance between uniformity and fairness; however, one does not always 
guarantee the other in all circumstances. These revisions would ensure 
the EPA has the flexibility to maintain that balance, as appropriate.
    Fairness is defined by one source as ``agreeing with what is 
thought to be right or acceptable; treating people in a way that does 
not favor some over others'' (http://www.merriam-webster.com/dictionary/fairness). As we have already discussed, it is generally 
acceptable to apply a Circuit Court decision only in those states over 
which the circuit has jurisdiction. And, as explained using an example 
below, there are circumstances under which applying the decision of a 
lower court nationwide could favor sources located in the applicable 
lower court's jurisdiction over those located in other circuits. As 
such, a standard that would specifically allow for intercircuit 
nonaquiescence for all CAA decisions other than those issued by the 
D.C. Circuit Court in response to challenges of nationwide actions 
would provide a uniform standard for the EPA's application of court 
decisions that could be anticipated by those who implement the 
regulations and the regulated community.
    It is not clear that the automatic, immediate nationwide 
application of one court's decision based on the specific facts of a 
locally-applicable decision would always be ``fair'' in the absence of 
the type of accommodation proposed here. For example, consider widget 
factories that have been diligently complying with the EPA's 
longstanding interpretation that the Act supports permit limits of 1.00 
ppm or lower (i.e., more stringent) at widget extrusion units at major 
sources. However, in a challenge by a community group to a single 
widget factory permit in New England containing a limit of 1.00 ppm for 
the extrusion units, the First Circuit Court of Appeals issues a ruling 
with a different interpretation of the Act than the EPA's that supports 
a limit of 0.50 ppm or lower. A reasonable person might not find it 
fair to require then that all widget factories nationwide get permit 
revisions to establish limits of 0.50 ppm. Those factories would have 
been relying on the 1.00 ppm limit for years when planning budgets and 
making business decisions, and would likely find complying with the 
lower limit costly and disruptive. Arguably, fairness might be better 
served by limiting the impact of the First Circuit decision to the 
source whose permit was before the First Circuit and any other widget 
factories within the jurisdiction of the First Circuit, while the EPA 
determines how best to proceed.
    While CAA section 301(a)(2) directed the EPA to create mechanisms 
for identifying and standardizing various criteria, there is nothing to 
suggest that

[[Page 50257]]

such standardization requires exact duplication by all EPA regions in 
all circumstances, including regional responses to court decisions. CAA 
section 301 generally relates to procedures to be followed by the EPA 
employees in carrying out a delegation of authority from the 
Administrator. Paragraph 301(a)(1) of the Act authorizes the 
Administrator to delegate certain powers to other EPA officials, while 
section 301(a)(2) of the Act requires the Administrator to establish 
``general applicable procedures and policies for regional officers and 
employees'' to follow in carrying out delegated authorities. CAA 
section 301(a)(1)-(2). While the statute further directs that such 
regulations shall be designed to, among other requirements, ``assure 
fairness and uniformity in the criteria, procedures, and policies 
applied by the various regions in implementing and enforcing the 
chapter,'' on its face, CAA section 301(a)(2) does not impose a 
standalone requirement to attain uniformity. Cf. Air Pollution Control 
Dist. v. EPA, 739 F.2d 1071, 1085 (6th Cir. 1984) (rejecting claim that 
CAA section 301(a)(2) establishes a substantive standard that requires 
similar or uniform emission limitations for all sources). In addition, 
the section does not direct the Administrator to revise an existing 
regulation following an adverse court decision in a local or regional 
case, or otherwise constrain the EPA's existing regulatory authority. 
Instead, the provision requires the EPA to establish procedures that 
apply to its regional officers and employees, but it does not address 
whether or how the EPA should address judicial decisions in those 
procedures. To the extent that Congress prioritized judicially-created 
uniformity, this was expressed in CAA section 307(b)(1)--which, as 
discussed above, allows for regional divergence among circuit courts--
not CAA section 301(a)(2)(A).
4. Accommodating Intercircuit Nonaquiescence in the Regional 
Consistency Regulations Fosters Overall Fairness and Predictability 
Regarding the Scope and Impact of Judicial Decisions Under the CAA
    Revising the Regional Consistency regulations to include a specific 
accommodation for intercircuit nonaquiescence in appropriate 
circumstances would also help to assure fairness and predictability in 
the implementation of the CAA overall. Such an accommodation would 
foster predictability by ensuring that, unless there is an affirmative 
nationwide and deliberate change in the EPA's rules or policies, lower 
court decisions would apply only in those states/areas within the 
jurisdiction of the lower court, with the exception of the D.C. Circuit 
Court reviewing final agency actions of national applicability, 
consistent with CAA section 307(b)(1). Under the revised Regional 
Consistency regulations, as proposed, a source subject to the CAA 
would, as usual, need to know and follow the law in the circuit where 
it is located, and the law of the D.C. Circuit Court and the U.S. 
Supreme Court. It would not be required to follow every CAA case in 
every court across the country to ensure compliance with the Act.
    By revising the regulations, the EPA also accommodates the 
possibility that a split in the circuits could preclude the EPA from 
complying with both court decisions at once. Consider the following 
example: In a case involving a permit issued in New York, the Second 
Circuit upholds the EPA's longstanding position and, in doing so, 
confirms that the EPA's interpretation is compelled by the Act under 
Step One of Chevron.\9\ As a result, the EPA continues to apply its 
longstanding interpretation, consistent with the Second Circuit's 
decision, in a permit issued in Alabama, an Eleventh Circuit state. In 
an appeal of that permit, however, the Eleventh Circuit holds that not 
only is the EPA's interpretation not compelled by the CAA, it is 
prohibited by the CAA. There are now two court decisions with 
conflicting Chevron Step One holdings--how could the EPA apply both of 
those decisions uniformly across the country? While the U.S. Supreme 
Court could review the issue, it might not. Further, even if the U.S. 
Supreme Court eventually resolved the conflict, there could be a multi-
year period during which both decisions would remain applicable case 
law. This proposed revisions would acknowledge and address those 
instances in which the EPA may not be able to comply with two, 
conflicting decisions at the same time.
---------------------------------------------------------------------------

    \9\ Chevron U.S.A. Inc. v. Natural Resources Defense Council, 
Inc., 467 U.S. 837 (1984) (Step one of Chevron refers to cases where 
the intent of Congress is clear, and therefore a court, as well as 
the agency, must give effect to the unambiguously expressed intent 
of Congress).
---------------------------------------------------------------------------

    Moreover, sometimes court decisions reviewing a regulation or 
statute are reversed on appeal. In other cases, a court decision may 
contain a ruling that appears to invalidate a national rule in the 
context of a source-specific action, which is inconsistent with CAA 
section 307(b)(1), as explained above. When either outcome occurs, 
intercircuit nonaquiescence allows the EPA to limit the impact of the 
court's ruling while it undertakes other actions. For example, in 
Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007), the 
U.S. Supreme Court reversed the Fourth Circuit's implicit invalidation 
of the EPA's regulations in the context of an enforcement action. In 
that case, the U.S. Supreme Court found that the court of appeals had 
been too rigid in its insistence that the EPA interpret the term 
``modification'' in its PSD regulations in the same way that the agency 
interpreted that term under the New Source Performance Standards 
program. Id. at 572-577. While it is true the U.S. Supreme Court 
eventually reversed the lower court, there was a 2-year period during 
which the Fourth Circuit's decision remained in place. Under the D.C. 
Circuit Court's interpretation of the existing Regional Consistency 
regulations, the EPA arguably would have been required to follow that 
later-reversed Fourth Circuit interpretation of its regulations 
nationwide during that 2 year period, even though that interpretation 
``read those PSD regulations in a way that seems to [the Supreme Court] 
too far a stretch for the language used.'' Id. at 577.
    As discussed earlier, since the U.S. Supreme Court only grants a 
very limited number of petitions for certiorari, it is highly likely 
that an adverse court of appeals decision could remain in place 
indefinitely. This possibility is exacerbated if the EPA is prohibited 
by its own regulations governing consistency from seeking to create a 
circuit split on the issue by non-acquiescing to the first adverse 
decision, and maintaining its national position before other courts. 
Moreover, if the lower court decision is based on an interpretation of 
the CAA statutory language, the EPA may not be able to ``fix'' the 
problem by revising the underlying regulation because the agency could 
arguably be required to follow the statutory construction set forth in 
the lower court's decision. Such a result would be inconsistent with 
the general structure of the federal judiciary, the specific structure 
of the Act's judicial review provision, and the general directive to 
assure both fairness and uniformity in CAA section 301(a)(2).
5. Accommodating Intercircuit Nonaquiescence in the Regional 
Consistency Regulations is a Reasonable Extension of the EPA's Part 56 
Regulations
    As noted above, because there is nothing in the statutory text of 
CAA section 301(a)(2) that would prohibit the

[[Page 50258]]

EPA from revising the Regional Consistency regulations to specifically 
accommodate intercircuit nonaquiescence, we wish to evaluate that 
approach. Nothing in the preambles to the proposed and final Regional 
Consistency regulations indicates that either commenters or the EPA 
considered the question whether or how the rules would be applied 
following judicial decisions (see generally 44 FR 13043-048 and 45 FR 
85400-405, respectively). In addition, while the D.C. Circuit Court's 
NEDACAP decision relied heavily on the general policy statements 
contained in 40 CFR 56.3 of the existing regulations--which broadly 
endorse the fair and uniform application of criteria, policy, and 
procedures by EPA regional office employees--there is nothing in those 
general statements or any other provisions of the regulations that 
mandate that the EPA adopt nationwide the interpretation of the court 
that first addresses a legal matter in all circumstances. The lack of 
such a mandate shows that the focused revisions we are proposing in 
this rulemaking are a natural extension of the agency's existing 
regulations.
    The Regional Consistency regulations generally establish certain 
mechanisms with the goal of ``identifying, preventing, and resolving 
regional inconsistencies'' (45 FR 85400). For the EPA headquarters 
office employees, the regulations do this by targeting particular 
aspects of the Act that have the potential to present consistency 
problems--any rule or regulation proposed or promulgated under part 51, 
which sets forth requirements for the preparation, adoption and 
submittal of state implementation plans, and part 58, which contains 
requirements for measuring, monitoring, and reporting ambient air 
quality. However, the consistency regulations do not state a 
requirement for headquarters offices to apply these parts consistently 
in all circumstances. Instead the regulations direct headquarters 
office employees to develop mechanisms to assure that such rules or 
regulations are implemented and enforced fairly and uniformly by the 
regional offices. In so doing, the regulations do not state that 
headquarters employees are required to assure that a decision of one 
judicial circuit is always applied consistently in all EPA regions.
    Likewise, the provisions of the Regional Consistency regulations 
that apply to the EPA regional office employees also do not contain a 
requirement that all regional officials act the same way in all 
circumstances, nor do they address judicial decisions. While the EPA 
could change any such requirement if it did exist in our regulations, 
we do not need to make such a change because the narrow revisions we 
are proposing in this rulemaking are a natural extension of the 
existing regulations, which state that regional officials must assure 
that actions are ``carried out fairly and in a manner that is 
consistent with the Act and Agency policy'' and are ``as consistent as 
reasonably possible with the activities of other Regional Offices'' 40 
CFR 56.5(a)(1)-(2) (emphasis added).
    As discussed above, Congress specifically addressed the role of and 
allowed for regional office divergence among circuit courts in CAA 
section 307(b)(1), and it would be both reasonable and fair to allow 
for inconsistencies among the actions of regional officials to respect 
those directives. Perhaps more importantly, the Regional Consistency 
regulations already allow for some variation between the regional 
offices. Specifically, 40 CFR 56.5(b) provides that regional officials 
``seek concurrence'' from the EPA headquarters with respect to any 
interpretations of the Act, rule, regulation, or guidance that ``may 
result in inconsistent application among the regional Offices.'' Thus, 
the EPA has already acknowledged that certain regions may in some 
instances act inconsistently with others, and the revisions proposed in 
this action would simply be identifying and authorizing such 
inconsistency specifically when necessitated by a federal court 
decision reviewing an action of local or regional applicability.
    In fact, the proposed revisions would further the overall goals of 
the existing Regional Consistency regulations by specifically 
identifying the possibility of potential inconsistent actions across 
the EPA regions, especially where multiple courts have already 
addressed an issue in different ways, and standardizing a response that 
can be followed by all the regions, such that regions only have to 
apply local and regional decisions issued by courts in those areas in 
which the court has jurisdiction.
6. Accommodating District Court Decisions in the Regional Consistency 
Regulations Is Also Appropriate
    As we have explained above, revising the Regional Consistency 
regulations to specifically accommodate circuit court decisions via 
intercircuit nonaquiescence is consistent with general principles of 
common law, and CAA sections 307(b)(1) and 301(a)(2). In addition, it 
will help to foster overall fairness and predictability regarding the 
scope and impact of judicial decisions under the CAA, and is a 
reasonable extension of the EPA's existing part 56 regulations. To the 
extent one could read the NEDACAP decision to imply that the Regional 
Consistency regulations would also require the EPA to apply district 
court decisions uniformly across the nation, the revisions also 
appropriately accommodate district court decisions, which are by their 
very nature even more limited in scope.
    The federal district courts are the general trial courts of the 
federal judiciary system. See generally 28 U.S.C. 81-131 (establishing 
district courts for each of the 50 states and the District of 
Columbia). The district courts only have the authority to hear cases in 
a specific geographic area that raise specific claims for which 
Congress has granted the court jurisdiction. See generally 28 U.S.C. 
1390-1431 (discussing the venue of the district courts) and 1330-1369 
(discussing the jurisdiction of the district courts). A district court 
decision is based on the application of the law to the specific facts 
of a case, involving the parties to the case. Thus, while a decision 
from a circuit court is binding on those district courts located in the 
circuit, as a general matter, a decision from a district court is 
applicable only to those parties in the specific case in which it is 
issued and has no binding precedential effect on any other parties, 
courts or even other judges in the same district. See Hart v. 
Massanari, 266 F.3d at 1174. Given this very limited scope of district 
court decisions, it is reasonable to revise the Regional Consistency 
regulations to clearly accommodate district court decisions that result 
from specific locally or regionally cases in which the EPA is a party. 
Without such a revision, a party may try to argue that, pursuant to the 
Regional Consistency regulations, a single district court decision 
based on the specific facts in one case forms the basis for a uniform 
nationwide EPA position, elevating the impact of that district court 
decision well beyond the scope that is usually provided to district 
court decisions, and thus upsetting the general principles of U.S. 
common law upon which our federal judiciary is based.
    Likewise, as noted above, Congress created a very specific system 
of judicial review to address how the Act is implemented, and that 
system is focused on challenges to specific final actions in the 
circuit courts. There is nothing in CAA section 307(b)(1) or in the 
statutory language requiring the EPA to promulgate regional consistency 
rules that would suggest that Congress intended district court 
decisions in

[[Page 50259]]

specific cases to have a potentially broad binding effect on the 
agency. Not only would such an outcome elevate a district court 
decision to the same level of a D.C. Circuit Court decision under CAA 
section 307(b)(1), but it would be directly opposed to the idea of 
``fairness'' put forward by Congress in CAA section 301(a)(2). If the 
Regional Consistency regulations cannot accommodate various district 
court decisions, a fundamental unfairness would arise when a district 
court decision applying its interpretation of an agency rule to the 
specific facts of one EPA case in Alaska could impact how the agency 
would address the same rule but with very different facts in Florida. 
Given the various reasons set forth above for limiting application of 
circuit court decisions resulting from challenges to locally or 
regionally applicable actions, and the fact that the scope of district 
court decisions in the federal court system is even more narrowly 
defined than that of circuit court decisions, it is only reasonable to 
revise the Regional Consistency regulations to clearly limit the 
application of district court decisions only to the specific parties 
and facts addressed in the decision.
7. Accommodating Intercircuit Nonaquiescence in the Regional 
Consistency Regulations Maintains EPA's Ability To Exercise Discretion
    Although the proposed rule revisions would make clear that the EPA 
is not obligated to follow judicial decisions of a federal circuit 
court addressing ``locally or regionally applicable'' actions in other 
circuits (or district court decisions in instances that do not involve 
parties to such decision), the proposal is not intended to preclude 
anyone from advocating that the agency exercise its discretion to 
follow such decisions in appropriate cases. The EPA recognizes that 
national policy can be influenced by insights and reasoning from 
judicial decisions and we do not mean to imply through this proposal 
that the agency would ignore persuasive judicial opinions issued in 
cases involving ``locally or regionally applicable'' actions. Such 
opinions may address issues of nationwide importance and could, in 
appropriate circumstances, lead the agency to adopt new national 
policy.

V. Environmental Justice Considerations

    This document is proposing a rule revision to give the EPA 
flexibility to implement court decisions of a limited scope (i.e., 
those having local or regional applicability) while also allowing us to 
implement our national program under the CAA. The EPA did not conduct 
an environmental analysis for this rule because this rule would not 
directly affect the air emissions of particular sources. Because this 
rule will not directly affect the air emissions of particular sources, 
it does not affect the level of protection provided to human health or 
the environment. Therefore, this action will not have potential 
disproportionately high and adverse human health or environmental 
effects on minority, low-income or indigenous populations.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011) because it does not result in an impact 
greater than $100 million in any one year or raise novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The proposed rule would not create any new requirements for regulated 
entities, but rather provides flexibility to EPA in implementing 
numerous programs on a national basis.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedures 
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.
    For purposes of assessing the impacts of this proposed action on 
small entities, small entity is defined as: (1) A small business as 
defined in the U.S. Small Business Administration size standards 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; or (3) a small organization that is any 
not-for-profit enterprise that 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 requirements directly on small 
entities. Entities potentially affected directly by this proposal 
include federal, state, local and tribal governments, none of which 
qualify as small entities.
    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 contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local or tribal governments or the private sector. 
The action imposes no enforceable duty on any state, local or tribal 
governments or the private sector. Therefore, this action is not 
subject to the requirements of sections 202 and 205 of the UMRA.
    This rule 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. As noted 
previously, the effect of the proposed rule would be neutral or relieve 
regulatory burden.

E. Executive Order 13132: Federalism

    This proposed rule 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 proposed rule would revise 
regulations that apply to the EPA, and any delegated state/local 
governments, only, and would not, therefore, affect the relationship 
between the national government and the states or the distribution of 
power and responsibilities among the various levels of government.
    In the spirit of Executive Order 13132 and consistent with the EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicits comment on this proposed 
rule from state and local officials.

[[Page 50260]]

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule does not have tribal implications, as specified 
in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not 
have substantial direct effects on tribal governments, on the 
relationship between the federal government and Indian tribes or on the 
distribution of power and responsibilities between the federal 
government and Indian tribes, as specified in Executive Order 13175. 
This proposed rule only affects our flexibility regarding judicial 
decisions as they apply to implementing air programs on a national 
basis. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 
1997) as applying only to those regulatory actions that concern health 
or safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

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 the 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. The NTTAA directs the EPA to 
provide Congress, through the OMB, explanations when the agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, the EPA did not consider 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, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies and activities on minority populations and low-income 
populations in the United States.
    The 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 it does not 
affect the level of protection provided to human health or the 
environment. The proposed rule would provide flexibility to the EPA in 
issuing guidance to implement its regulations with respect to judicial 
decisions. The results of this evaluation are contained in section V of 
the preamble titled ``Environmental Justice Considerations.''

K. Determination Under Section 307(d)

    Pursuant to section 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.''

VII. Statutory Authority

    The statutory authority for this action is provided by section 301 
of the CAA as amended (42 U.S.C. 7601).

List of Subjects in 40 CFR Part 56

    Environmental protection, Air pollution control.

    Dated: August 5, 2015.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 56--REGIONAL CONSISTENCY

0
1. The authority citation for part 56 continues to read as follows:

    Authority:  Sec. 301(a)(2) of the Clean Air Act as amended (42 
U.S.C. 7601).

0
2. Section 56.3 is amended by adding paragraph (d) to read as follows:


Sec.  56.3  Policy.

* * * * *
    (d) Recognize that only the decisions of the U.S. Supreme Court and 
decisions of the U.S. Court of Appeals for the D.C. Circuit Court that 
arise from challenges to ``nationally applicable regulations . . . or 
final action,'' as discussed in Clean Air Act section 307(b) (42 U.S.C. 
7607(b)), shall apply uniformly, and to provide for exceptions to the 
general policy stated in paragraphs (a) and (b) of this section with 
regard to decisions of the Federal courts that arise from challenges to 
``locally or regionally applicable'' actions, as provided in Clean Air 
Act section 307(b) (42 U.S.C. 7607(b)).
0
3. Section 56.4 is amended by adding paragraph (c) to read as follows:


Sec.  56.4  Mechanisms for fairness and uniformity--Responsibilities of 
Headquarters employees.

* * * * *
    (c) The Administrator shall not be required to issue new mechanisms 
or revise existing mechanisms developed under paragraph (a) of this 
section to address the inconsistent application of any rule, 
regulation, or policy that may arise in response to the limited 
jurisdiction of either a Federal circuit court decision arising from 
challenges to ``locally or regionally applicable'' actions, as provided 
in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), or a Federal 
district court decision.
0
4. Section 56.5 is amended by adding a sentence at the end of paragraph 
(b) and paragraphs (b)(1) and (2) to read as follows:


Sec.  56.5  Mechanisms for fairness and uniformity--Responsibilities of 
Regional Office employees.

* * * * *
    (b) * * * However, the responsible official in a regional office 
will not be required to seek such concurrence from the appropriate EPA 
headquarters office for actions that may result in inconsistent 
application if such inconsistent application is required in order to 
act in accordance with a Federal court decision:

[[Page 50261]]

    (1) Issued by a Circuit Court in challenges to ``locally or 
regionally applicable'' actions, as provided in Clean Air Act section 
307(b) (42 U.S.C. 7607(b)), if that Circuit Court has direct 
jurisdiction over the geographic areas that the regional office 
official is addressing, or
    (2) Issued by a District Court in a specific case if the party the 
regional office official is addressing was also a party in the case 
that resulted in the decision.
* * * * *
[FR Doc. 2015-20506 Filed 8-18-15; 8:45 am]
 BILLING CODE 6560-50-P