50250 Federal Register / Vol. 80, No. 160 / Wednesday, August 19, 2015 / Proposed Rules 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely proposes to approve state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide the EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where the EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Particulate matter, Reporting 

and recordkeeping requirements. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: August 5, 2015. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2015–20499 Filed 8–18–15; 8:45 am] 

BILLING CODE 6560–50–P 

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: 

nizich.greg@epa.gov. 

To request a public hearing or 

information pertaining to a public 

hearing on this document, contact Ms. 

Pamela Long, Air Quality Policy 

Division, 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: long.pam@epa.gov. 

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 


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Federal Register / Vol. 80, No. 160 / Wednesday, August 19, 2015 / Proposed Rules 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: long.pam@epa.gov. 

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 


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1That 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. 

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/epaorganization-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 


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Federal Register / Vol. 80, No. 160 / Wednesday, August 19, 2015 / Proposed Rules 50253 

2While 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. 

3The D.C. Circuit Court did not reach 

NEDACAP’s argument that the memorandum was 

also inconsistent with the CAA. 

4See http://dailywrit.com/2013/01/likelihood-ofa-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. 

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. 

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. 

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). 

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 


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50254 Federal Register / Vol. 80, No. 160 / Wednesday, August 19, 2015 / Proposed Rules 

5Memorandum 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) 

6The exception is the Federal Circuit, which 

hears certain types of cases from anywhere in the 

country. 

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. 

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 


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7See 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.’’). 

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. 

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, 


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8Moreover, 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)). 

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 regionallybased 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. 

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.merriamwebster.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 


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9Chevron 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). 

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. 

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 nonacquiescing 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 


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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 


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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-forprofit 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. 


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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 

■ 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). 

■ 2. Section 56.3 is amended by adding 

paragraph (d) to read as follows: 

§ 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)). 

■ 3. Section 56.4 is amended by adding 

paragraph (c) to read as follows: 

§ 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. 

■ 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: 

§ 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: 


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(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 


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