[Federal Register Volume 86, Number 198 (Monday, October 18, 2021)]
[Rules and Regulations]
[Pages 57585-57586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22611]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2014-0464; FRL-8992-01-OAR]


Denial of Petition for Reconsideration and Administrative Stay: 
``Prevention of Significant Deterioration (PSD) and Nonattainment New 
Source Review (NNSR): Project Emissions Accounting''

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of action denying petition for reconsideration and 
administrative stay.

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SUMMARY: The Environmental Protection Agency (EPA) is providing notice 
that it has responded to a petition for reconsideration and 
administrative stay of a final action under the Clean Air Act (CAA) 
published in the Federal Register on November 24, 2020, titled, 
``Prevention of Significant Deterioration (PSD) and Nonattainment New 
Source Review (NNSR): Project Emissions Accounting,'' (``Project 
Emissions Accounting rule''). On January 22, 2021, the Environmental 
Defense Fund (EDF), the Natural Resources Defense Council (NRDC), the 
Environmental Integrity Project (EIP), the Sierra Club, and the 
Adirondack Council (``petitioners'') submitted a petition requesting 
that the EPA reconsider and stay the effective date of the Project 
Emissions Accounting rule. The EPA has denied this petition in a letter 
to the petitioners for the reasons that the EPA explains in that 
letter. The EPA is not taking action at this time on the petitioners' 
additional request to withdraw the memorandum titled ``Project 
Emissions Accounting Under the New Source Review Preconstruction 
Permitting Program'' (March 13, 2018) (``March 2018 Memorandum'').

DATES: October 18, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Tanya Abrahamian, U.S. 
Environmental Protection Agency, Office of Air Quality Planning and 
Standards, Air Quality Policy Division, 109 T.W. Alexander Drive, Mail 
Code C539-04, Research Triangle Park, NC 27711; phone number: (919) 
541-5690; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Where can I get copies of this document and other related 
information?

    This Federal Register document, the petition for reconsideration 
and administrative stay, and the response letter to the petitioners are 
available in the docket that the EPA established for the Project 
Emissions Accounting rulemaking, under Docket ID NO. EPA-HQ-OAR-2018-
0048.
    All documents in the docket are listed in the index at https://www.regulations.gov. Although listed in the index, some information may 
not be publicly available, i.e., Confidential Business Information 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.
    Due to public health concerns related to COVID-19, the EPA Docket 
Center and Reading Room are open to the public by appointment only. Our 
Docket Center staff also continues to provide remote customer service 
via email, phone, and webform. Hand deliveries or couriers will be 
received by scheduled appointment only. For further information and 
updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.
    In addition, the EPA has established a website for the New Source 
Review permitting program, including New Source Review rulemakings, at: 
https://www.epa.gov/nsr. This Federal Register document, the petition 
for reconsideration and administrative stay, and the response letter 
denying the petition are also available on this website along with 
other information.

II. Judicial Review

    Section 307(b)(1) of the CAA governs judicial review of final 
actions by the EPA. This section provides, in part, that petitions for 
review must be filed in the Court of Appeals for the District of 
Columbia Circuit: (i) When the agency action consists of ``nationally 
applicable regulations promulgated, or final actions taken, by the 
Administrator,'' or (ii) when such action is locally or regionally 
applicable, if ``such action is based on a determination of nationwide 
scope or effect and if in taking such action the Administrator finds 
and publishes that such action is based on such a determination.'' 
Judicial challenges to the EPA's denials of petitions for 
reconsideration of CAA actions belong in the same venue as any 
challenge to the action that such petitions request the agency to 
reconsider.\1\
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    \1\ Cf. Natural Res. Def. Council, Inc. v. Thomas, 838 F.2d 
1224, 1249 (D.C. Cir. 1988) (the clause in CAA section 307(b) 
governing ``nationally applicable regulations'' provides 
jurisdiction over both the direct challenge to the regulations and 
the petition for reconsideration).
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    On January 19, 2021, the States of New Jersey, Maryland, Minnesota, 
Oregon, and Washington, and the Commonwealth of Massachusetts, the 
Commonwealth of Pennsylvania, and the District of Columbia filed a 
petition for review of the Project Emissions Accounting rule in the 
D.C. Circuit. On January 22, 2021, EDF, NRDC, EIP, the Sierra Club, and 
the Adirondack Council filed a petition for review on the same action 
in the D.C. Circuit. Those cases have been consolidated and are 
temporarily being held in abeyance.
    The D.C. Circuit is the appropriate venue for challenges to the 
final action titled, ``Prevention of Significant Deterioration (PSD) 
and Nonattainment New Source Review (NNSR): Project Emissions 
Accounting,'' 85 FR 74890 (November 24, 2020), because it is nationally 
applicable. See 85 FR 74908. Therefore, challenges to the action 
denying the administrative petition on the Project Emissions Accounting 
rule must also be filed in the D.C. Circuit.
    Under CAA section 307(b), any petition for review of this action 
denying the petitions for reconsideration and/or stay must be filed in 
the Court of Appeals for the District of Columbia Circuit within 60 
days from the date this document is published in the Federal Register.

III. Description of Action

    On November 24, 2020, the EPA finalized the Project Emissions 
Accounting rule, which codified in the New Source Review (NSR) 
regulations the EPA's interpretation of the NSR applicability test 
contained in the March 2018 Memorandum.\2\ That memorandum and the 
subsequent Project Emissions Accounting rule

[[Page 57586]]

clarified that both increases and decreases in emissions resulting from 
a proposed project can be considered in Step 1 of the NSR major 
modification applicability test.\3\
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    \2\ Memorandum from E. Scott Pruitt, to Regional Administrators, 
``Project Emissions Accounting Under the New Source Review 
Preconstruction Permitting Program,'' March 13, 2018 available at: 
https://www.epa.gov/sites/production/files/2018-03/documents/nsr_memo_03-13-2018.pdf. The March 2018 Memorandum explained that 
``the EPA interpreted the current NSR regulations as providing that 
emissions decreases as well as increases are to be considered in 
Step 1 of the NSR applicability process, where those decreases and 
increases are part of a single project.'' More specifically, in the 
March 2018 Memorandum the EPA interpreted the major NSR regulations 
to mean that emissions increases and decreases could be considered 
in Step 1 for projects that involve multiple types of emissions 
units in the same manner as they are considered for projects that 
only involve new or only involve existing emissions units.
    \3\ An existing major stationary source triggers major NSR 
permitting requirements when it undergoes a ``major modification.'' 
The EPA's implementing regulations for NSR establish a two-step 
process for determining major NSR applicability for projects at 
stationary sources. To be subject to major NSR requirements, the 
project must result in both (1) a significant emissions increase 
from the project (the determination of which is called ``Step 1'' of 
the NSR applicability analysis); and (2) a significant net emissions 
increase at the stationary source, taking account of emissions 
increases and emissions decreases attributable to other projects 
undertaken at the stationary source within a specific time frame 
(called ``Step 2'' of the NSR applicability analysis, or 
``contemporaneous netting''). For this two-step process, the NSR 
regulations define what emissions rate constitutes ``significant'' 
for each NSR regulated pollutant. See 40 CFR 52.21(a)(2)(iv)(a); 40 
CFR 51.165(a)(1)(v); 40 CFR 51.166(b)(2)(i); 40 CFR part 51, 
appendix S, section II.A.5.(i).
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    On January 22, 2021, following promulgation of the final rule, the 
EPA Administrator received a petition for reconsideration of the final 
rule pursuant to CAA section 307(d)(7)(B). The petition for 
reconsideration was filed by EDF, NRDC, EIP, the Sierra Club, and the 
Adirondack Council. The petition for reconsideration requests that the 
EPA (1) stay the effectiveness of the rule during reconsideration for 
90 days; (2) conduct reconsideration proceedings and withdraw the 
Project Emissions Accounting rule within the 90-day stay period; and, 
(3) immediately withdraw the March 2018 Memorandum. CAA section 
307(d)(7)(B) requires the EPA to convene a proceeding for 
reconsideration of a rule if a party raising an objection to the rule 
``can demonstrate to the Administrator that it was impracticable to 
raise such objection within [the public comment period] or if the 
grounds for such objection arose after the period for public comment 
(but within the time specified for judicial review) and if such 
objection is of central relevance to the outcome of the rule.'' The EPA 
has carefully reviewed the petition for reconsideration and evaluated 
all issues raised. The EPA has determined that they do not meet the CAA 
section 307(d)(7)(B) criteria for mandatory reconsideration, and has 
sent a letter to the petitioner denying the petition for 
reconsideration and request for administrative stay of the Project 
Emissions Accounting rule. The letter articulates the rationale for the 
EPA's final response and is available in the docket for this action.

Michael S. Regan,
Administrator.
[FR Doc. 2021-22611 Filed 10-15-21; 8:45 am]
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